Arnold v Judge Aeneas McCarthy of Fermoy District Court
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 27 November 2017 |
| Neutral Citation | [2017] IECA 303 |
| Date | 27 November 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 303 Record No. 2016/88 Record No. 2016/89 |
AND
AND
[2017] IECA 303
Hogan J.
Finlay Geoghegan J.
Peart J.
Hogan J.
Neutral Citation Number: [2017] IECA 303
Record No. 2016/88
Record No. 2016/89
THE COURT OF APPEAL
Judicial review – Criminal prosecution – Breach of school attendance notice – Appellants seeking judicial review – Whether the Education (Welfare) Act 2000 was constitutional
Facts: The appellants, Mr and Ms M Arnold, were husband and wife and the parents of Ms S Arnold who was born on the 6th April 1999. Proceedings arose out of a criminal prosecution brought by the respondent, the Child and Family Agency (CFA), pursuant to s. 7(1) of the Education (Welfare) Act 2000 against Mr and Ms M Arnold arising from their failure to secure the attendance of Ms S Arnold at the nearest recognised school in their locality, namely, Cólaiste an Craoibhín, Duntaheen Road, Fermoy, Co. Cork or, indeed, any other school of the parents’ choice for this purpose, contrary to s. 25(4) of the 2000 Act. The prosecution took place in the District Court on the 10th April 2015. The parents were convicted of the offence in question. They were each fined €300 by the District Judge, with eight weeks to pay. The judge imposed a sentence of three days imprisonment in default of payment. The parents did not pay the fine within the eight week period nor did they appeal to the Circuit Court. Following their convictions, the parents did apply to the High Court for leave to apply for judicial review. On the 5th July 2015 Noonan J made an order adjourning the application for leave, and directed pursuant to Ord. 84, r.24(1) that the application for leave be heard on notice to the CFA. That application was heard by Binchy J on the 22nd January 2017 and, following an ex tempore ruling in the matter, he refused leave. The parents appealed to the Court of Appeal against that refusal.
Held by the Court that the appellants could not establish any arguable grounds, whether in the respect of the grounds advanced in the High Court or by reference to the new argument as to the constitutionality of the 2000 Act itself. The Court also considered that their submission that they were denied procedural fairness in the High Court was not well founded. The Court would not grant the appellants leave to amend their statements of grounds before the Court in order to raise the constitutionality of the 2000 Act (or any specified section thereof) in the judicial review applications. The Court reached that conclusion because it did not think that, having regard to the established or admitted facts of the case, the appellants had established any arguable ground by reference to which the constitutionality of the 2000 Act (or any specified section thereof) might be challenged by them.
The Court held that it would affirm the decision of Binchy J to refuse leave to apply for judicial review in respect of the orders and convictions made by the District Court on the 10th April 2015.
Appeal dismissed.
The applicants in these judicial review proceedings are husband and wife who are litigants in person. They are the parents of Sorcha Arnold who was born on the 6th April 1999. While Sorcha has reached adulthood in recent months, she was a minor at the relevant dates giving rise to these proceedings. At the hearing of the appeal this Court was informed that Sorcha is now attending a third level institution.
The proceedings themselves arise out of a criminal prosecution brought by the Child and Family Agency (‘CFA’) pursuant to a s. 7(1) of the Education (Welfare) Act 2000 (‘the 2000 Act’) against Mr. and Ms. Arnold (‘the parents’) arising from their failure to secure the attendance of Sorcha at the nearest recognised school in their locality, namely, Cólaiste an Craoibhín, Duntaheen Road, Fermoy, Co. Cork or, indeed, any other school of the parents' choice for this purpose, contrary to s. 25(4) of the 2000 Act. The relevant education welfare officer (who had been appointed by the CFA for the purpose under s. 11(1) of the 2000 Act), Mr. Dan O'Shea, had previously served a school attendance notice on the parents pursuant to s. 25(1) of the 2000 Act on the 18th March 2014 requiring them to secure Sorcha's attendance at Cólaiste an Craoibhín.
When Sorcha did not attend school within the next week, the CFA duly applied for a summons under s. 7(1) of 2000 Act alleging a breach of the school attendance notice contrary to s. 25(4) of the 2000 Act. I may interpose here to say that given that the summons was applied for by a State agency, the summons was issued administratively by the relevant District Court office pursuant to s. 1 of the Courts (No.3) Act 1986, so that there was no question of any requirement for a book of evidence or anything of the sort in the manner suggested by the parents at that District Court hearing.
Following at least one adjournment, the prosecution took place in the District Court on the 10th April 2015. While I propose to return presently to what took place in that Court on that day, it is sufficient for present purposes to say that the parents were convicted of the offence in question. They were each fined €300 by the District Judge, with eight weeks to pay. The judge imposed a sentence of three days imprisonment in default of payment. It is not disputed that the parents did not pay the fine within the eight week period and nor did they appeal to the Circuit Court. It is also accepted that as a result both applicants face the immediate prospect of serving a three day prison sentence unless the convictions in question are quashed.
While there is some dispute as to what exactly transpired at the District Court, it is accepted at all times that Sorcha was not attending a recognised school within the meaning of the 2000 Act. It was further accepted that:
(i) following a consultation notice, the applicants were served with a School Attendance Notice within the meaning of that Act. (It is only fair to say, however, that the applicants have always disputed the validity of that notice);
(ii) that the said notice required the applicants to cause Sorcha to attend Cólaiste an Craoibhín;
(iii) the applicants failed to comply with that notice.
Following their convictions, the parents did, however, apply to the High Court for leave to apply for judicial review. On the 5th July 2015 Noonan J. made an order adjourning the application for leave, and directed pursuant to Ord. 84, r.24(1) that this application for leave be heard on notice to the CFA. That application was heard by Binchy J. on the 22nd January 2017 and, following an ex tempore ruling in the matter, he refused leave. The parents have now appealed to this Court against that refusal.
Perhaps the first thing to be considered is the nature of the appeal to this Court, the decision of the High Court and, specifically, the test to be applied in such cases.
It is clear that, the special statutory schemes aside (such as, for example, applications for leave to apply for judicial review under s. 50 of the Planning and Development Act 2000 (as amended)), applicants to apply for judicial review heard on notice by the High Court are required simply to show that they have arguable grounds: see DC v. Director of Public Prosecutions [2005] 4 I.R. 281, 289per Denham J. In other words, therefore, the Supreme Court confirmed in DC that the ordinary test for leave laid down in G. v. Director of Public Prosecutions [1994] 1 I.R. 374 applied in cases of this kind. As Clarke J. explained in Potts v. Minister for Defence [2005] 2 I.L.R.M. 517, 522:
‘Of equal importance it seems to me is a consideration of the statutory regime which has been introduced by both s. 50 of the Planning and Development Act 2000 and s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Both those provisions require that applications for judicial review in respect of certain planning matters and certain asylum type issues (‘the statutory case’) must be made by motion on notice to the appropriate respondents and impose a higher threshold than exists in respect of ordinary judicial review applications. Both the statutory cases require that the court, prior to granting leave, must be satisfied that three are substantial grounds for contending that the matter intended to be challenged is invalid or ought to be quashed.
In the jurisprudence of the courts in relation to both the above sections it has been accepted that a higher threshold for the grant of leave is required in such cases. That threshold has variously been described as being equivalent to ‘reasonable’ ‘arguable’ and ‘weighty’ but not ‘frivolous’ or ‘tenuous’. See for example VZ v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 135. It seems to me that the existence of such an established statutory regime in respect of matters where the Oireachtas has determined that leave should only be granted where a more onerous threshold is passed is a matter that needs to be considered in a case such as this. It would be a strange result if a yet higher standard still was required to be met by an applicant who, though not the subject of a statutory requirement to give notice and to meet a higher threshold but who nonetheless, on a discretionary basis, was required to give notice by the court hearing an ex parte application.’
It follows, therefore, that leave should be granted by the High Court in a case of this kind if the applicants can show not only that the...
To continue reading
Request your trial
-
O'Doherty v The Minister for Health
...if it were hearing an appeal in an inter partes matter – whether the High Court judge was correct. As I observed in Arnold v. McCarthy [2017] IECA 303, the provisions of the old Ord. 58, r. 13 have not, however, been replicated in the present Rules of the Superior Courts. It is, however, un......
-
Gibb v Promontoria (Aran) Ltd
...The present case is just one more such example. 21 I would refer also to the judgment of Hogan J. in this Court in Arnold v. McCarthy [2017] IECA 303 where he considered this question on the facts of that case which are very different. During the course of his judgment Hogan J., having ref......
-
Arnold v Judge McCarthy
...applicants seek leave to appeal from the decision of the Court of Appeal (see Arnold v. Judge McCarthy and the Child and Family Agency [2017] IECA 303) dismissing their appeals against the refusal of the High Court (Binchy J., ex tempore ruling given on the 22nd January, 2016) to grant them......