Arnold v Judge McCarthy

• Jurisdiction: Ireland
• Judge: Clarke C.J.,Dunne J.,O'Malley J.
• Judgment Date: 09 April 2018
• Neutral Citation: [2018] IESCDET 46
• Court: Supreme Court
• Date: 09 April 2018

[2018] IESCDET 46

THE SUPREME COURT

DETERMINATION

Clarke C.J.

Dunne J.

O'Malley J.

BETWEEN:

MAUREEN ARNOLD

APPLICANT

AND

JUDGE AENEAS McCARTHY OF FERMOY DISTRICT COURT AND CHILD AND FAMILY AGENCY

RESPONDENTS

BETWEEN:

DAN ARNOLD

APPLICANT

AND

JUDGE AENEAS McCARTHY OF FERMOY DISTRICT COURT AND CHILD AND FAMILY AGENCY

RESPONDENTS

APPLICATIONS FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT: 27 th November, 2017

DATE OF ORDERS: 13 th December, 2017

DATE OF PERFECTION OF ORDERS: 13 th December, 2017

THE APPLICATIONS FOR LEAVE TO APPEAL WERE MADE ON THE 2 nd JANUARY, 2018, AND WERE IN TIME.

RESULT: The Court does not grant leave to the Applicants to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2 The applications for leave, and the respondents' and notice parties' responses thereto, are published along with this determination and it is therefore unnecessary to set out the positions of the parties in detail.

Decision

3 The 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 leave to apply for judicial review proceedings. The proceedings arise from the order of the first named respondent, made on the 10th April, 2015, convicting each of the applicants of the offence of failing to comply with a duly issued school attendance notice issued pursuant to s. 25(1) of the Education (Welfare) Act 2000 in that each of them failed to cause their daughter to attend at the school specified in the notice. Each then sought leave to seek judicial review as against the two respondents.

4 The High Court refusal of leave was then appealed to the Court of Appeal. Applying the test set out in G. v. Director of Public Prosecutions [1994] 1 I.R. 374, that Court ruled that the applicants had failed to demonstrate that they had arguable grounds on any of the arguments put forward in the High Court. As summarised in the judgment there were five such issues raised in the appeal – that the applicants should not have been prosecuted individually in respect of a decision made as members of a family unit; that the school attendance notice was invalid because it failed to comply with the requirement of the School Attendance Act 1926 that non-attendance of the child in question should be certified by the school principal; that there was insufficient evidence to ground the conviction; that the...