O'B (E R)(A Minor) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 06 October 2009
• Neutral Citation: [2009] IEHC 423
• Court: High Court
• Date: 06 October 2009

[2009] IEHC 423

THE HIGH COURT

[No. 469 J.R./2008]

O'B (E R)(A Minor) v Min for Justice & Ors

E. R. O'B. (a minor) Suing by her father and next friend W. O'B.

Applicant

And

The Minister for Justice, Equality and Law Reform,

Ireland and Attorney General

Respondents

CONSTITUTION ART 41.1

CONSTITUTION ART 40.3

CONSTITUTION ART 40.1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

GUARDIANSHIP OF INFANTS ACT 1964 S2(4)(E)

CHILDREN ACT 1997 S4

GUARDIANSHIP OF INFANTS ACT 1964 S6A

STATUS OF CHILDREN ACT 1987 S12

CONSTITUTION ART 41

CONSTITUTION ART 42

ERIKSSON v SWEDEN 1990 12 EHRR 183

HOKKANEN v FINLAND 1995 19 EHRR 139

CAHILL v SUTTON 1980 IR 269

CROTTY v AN TAOISEACH 1987 IR 713 1990 ILRM 617

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN (IRL) LTD v COOGAN & ORS 1989 IR 734 1990 ILRM 70

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

DESMOND & DEDEIR v GLACKIN & ORS (NO 2) 1993 3 IR 67

O'REILLY & ORS v LIMERICK CORP & ORS 1989 ILRM 181 1988 DULJ 189 1988/10/2829

D (T) (A MINOR) & ORS v MIN FOR EDUCATION & ORS 2001 4 IR 259 2001/5/1050

SINNOTT v MIN FOR EDUCATION & ORS 2001 2 IR 545

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622

GUARDIANSHIP OF CHILDREN (STATUTORY DECLARATION) REGS 1998 SI 5/1998

BOTTA v ITALY 1998 26 EHRR 241

CONSTITUTION ART 40.3.1

GUARDIANSHIP OF INFANTS ACT 1964 S6

1. Relief Sought

2 1.1 Leave was granted by this Court (Peart J.) on the 7 ^th May, 2008, to the applicant to seek the following reliefs by way of judicial review:-

1 A declaration that the failure on the part of the respondents to establish and maintain a register of guardianship agreements constitutes a breach of the applicant's constitutional rights having regard to Article 41.1 of the Constitution of Ireland.

2 A declaration that the failure on the part of the respondents to establish and maintain a register of guardianship agreements constitutes a breach of the applicant's constitutional rights having regard to Article 40.3 of the Constitution of Ireland.

3 A declaration that the failure on the part of the respondents to establish and maintain a register of guardianship agreements constitutes a breach of the applicant's constitutional rights having regard to Article 40.1 of the Constitution of Ireland.

4 A declaration that the failure on the part of the respondents to establish and maintain a register of guardianship agreements constitutes a breach of s.3 of the European Convention on Human Rights Act 2003 ("the Act of 2003") insofar as said failure is in breach of the applicant's rights having regard to Article 8 of the European Convention on Human Rights (" the Convention").

5 A declaration that the failure on the part of the respondents to establish and maintain a register of guardianship agreements constitutes a breach of s.3 of the Act of 2003 insofar as the said failure is in breach of the applicant's rights having regard to Article 14 of the Convention.

6 An order of mandamuscompelling the respondents to establish and maintain a register of guardianship agreements.

7 Further, or in the alternative, a mandatory injunction compelling the respondents to establish and maintain a register of guardianship agreements.

2. The Facts

2 2.1 The applicant is an infant, who was born on the 12 ^th September, 2006, and is an Irish citizen. Her parents are unmarried. These proceedings were brought on her behalf by her father. On the 25 ^th October, 2006, her parents executed a joint statutory declaration to the effect that they would be joint guardians of her (" the guardianship agreement"), in accordance with s. 2(4) (e) of the Guardianship of Infants Act 1964, as substituted by the s.4 of the Children Act 1997.

3 2.2 The case is made on behalf of the applicant that it would be in her best interests that the guardianship agreement be registered on a public register recording the existence of such agreements and that the failure on the part of the respondents to establish and maintain such a register constitutes a breach of the applicant's legal and constitutional rights. On the 1 ^st November, 2007, the applicant's solicitors wrote to the first and second named respondents on behalf of the applicant, formally requesting the establishment of such a register and stating as follows:-

"As you are aware, there is no centralised system to record guardianship agreements concluded between unmarried parents. As such, the legal status that an agreement vests in the unmarried father is dependent on the preservation of the physical document. In the event of the document being lost or destroyed, there is no record of the father's legal status beyond his word to this effect.

Our Client's parents have concluded such an agreement, and it is our view that the failure of the State to provide the aforesaid register constitutes a breach of her legal and Constitutional rights."

4 2.3 The first named respondent replied by letter dated the 6 ^th November, 2007, stating that the above letter was "receiving attention". These proceedings were instituted on the 22 ^nd April, 2008.

3. The Issues

2 3.1 The principal issue to be determined is whether the absence of a public register recording the guardians of a non-marital child amounts to a breach of the applicant's Constitutional or Convention rights.

4. The applicant's submissions

2 4.1 Ms. Clissman S.C., for the applicant, submitted that the absence of a register of guardianship agreements meant that the applicant was at risk of losing her rights associated with having her father as her guardian in the event that the guardianship agreement was lost or destroyed, in the sense that it may not be proven that he is her guardian. She noted that a child whose status was altered by the addition of another guardian, such as the applicant, did not have recourse to any independent verification of their new status and she contrasted this with the position of a marital child who could look to the register of marriages for proof of guardianship. Ms. Clissman pointed to the recommendation in the 2009 " Report of the Family Law Reporting Project Committee to the Board of the Courts Service", that a central registry be established to record an official copy of the guardianship agreement. She submitted that such a register would record the existence of a new guardian, without the necessity of reliance on proof of the terms of the agreement.

3 4.2 Ms. Clissman contended that proof of the guardianship agreement depended solely on the survival of the physical legal document in the absence of a system of registration. Whilst she acknowledged that secondary evidence could be adduced to prove the existence of the document, she argued that this might not always be possible, especially in contentious cases and there may not be sufficient time to find and produce proof in emergency situations e.g. an emergency hospitalisation. The result, in such circumstances, she submitted, would be the de facto denial to the child of the benefit of its guardian.

4 4.3 She further submitted that it would not be appropriate in circumstances where the parents had reached an agreement as to guardianship for the applicant's father to apply to the District Court pursuant to s.6A of the Guardianship of Infants Act 1964, as inserted by s.12 of the Status of Children Act 1987 and as amended to be appointed as guardian. Such a step was usually taken, she submitted, when a dispute had arisen. Ms. Clissman observed that the appointment of a father as guardian by the Court is subject to the discretion of the Court and would involve an inquiry into the welfare of the child whereas, in contrast, a joint guardianship agreement comes into effect immediately and cannot be varied unless it is set aside.

5 4.4 The guarantee of equal treatment under Article 40.1 of the Constitution required that a public register of guardianship agreements be established for non-marital children, Ms. Clissman argued. The jurisprudence, in her submission, indicated that the rights of non-marital children deriving from Article 40.3 were of the same extent and nature as rights of marital children under Articles 41 and 42. Hence, she submitted the absence of a register of guardianship agreements placed non-marital in a disadvantaged position in comparison to marital children, who could avail of the Register of Marriages to easily establish their guardians, and was therefore an invidious discrimination against non-marital children, which was impermissible under Article 40.1 of the Constitution.

6 4.5 Ms. Clissman also argued that s.3 of the Act of 2003 was contravened. Her client's Article 8 rights, she submitted, were infringed by the absence of a public register as the difficulties her client would face upon loss or destruction of the agreement would not be faced by marital children. She relied upon the jurisprudence of the European Court of Human Rights which established that States have a positive duty to vindicate Article 8 rights such as Eriksson v. Sweden (1990) 12 E.H.R.R. 183 and Hokkanen v. Finland (1995) 19 E.H.R.R. 139. She noted that the margin of appreciation enjoyed by States is narrower in cases where a positive duty is established.

7 4.6 Ms. Clissman submitted that her client had locus standi to bring these proceedings and that the test in Cahill v. Sutton [1980] I.R. 269 was satisfied by her. The cases of Crotty v. An Taoiseach [1987] I.R. 713 and Society for the Protection of Unborn Children (Ireland) Ltd. v. Coogan [1989] I.R. 734 established, in her submission, that omissions were amenable to Constitutional challenge. Should the apprehended risks to her client crystallize, she argued, it may be too late and she was...