C.O's. and Another v Her Honour Judge Alice Doyle and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice MacMenamin,
• Judgment Date: 19 December 2013
• Neutral Citation: [2013] IESC 60
• Court: Supreme Court
• Docket Number: [Appeal No: 274/2013],[S.C. No. 274 of 2013]
• Date: 19 December 2013

[2013] IESC 60

THE SUPREME COURT

Denham C.J.

Murray J.

Fennelly J.

Clarke J.

MacMenamin J.

[Appeal No: 274/2013]

O'S (C) & B (T) (a minor) v Judge Doyle

Between/

C.O'S. and T.B. (A minor suing by his mother and next friend C.O'S.)

Applicants/Appellants

and

Her Honour Judge Alice Doyle

Respondent

and

D.B.

and

The Attorney General

Notice Parties

GUARDIANSHIP OF INFANTS ACT 1964 S11(1)

GUARDIANSHIP OF INFANTS ACT 1964 S2

CHILDREN ACT 1997 S4

GUARDIANSHIP OF INFANTS ACT 1964 S3

GUARDIANSHIP OF INFANTS ACT 1964 S6(A)

FAMILY LAW (MAINTENANCE OF SPOUSES & CHILDREN) ACT 1976 S5A(1)

GUARDIANSHIP OF INFANTS ACT 1964 S11

RSC O.60 r2

CONSTITUTION ART 40.3

P (A) v DPP 2011 1 IR 729 2011 2 ILRM 100 2011/43/12480 2011 IESC 2

RSC O.84

THIRTY FIRST AMDT OF THE CONSTITUTION BILL 2012

CONSTITUTION ART 41

CONSTITUTION ART 42

K (J) v W (V) & PROTESTANT ADOPTION SOCIETY 1990 2 IR 437 1996/14/4316

GUARDIANSHIP OF INFANTS ACT 1964 S6(A)(1)

O'R (W) v H (E) 1996 2 IR 248 1996/14/4316

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

NORTH WESTERN HEALTH BOARD v W (H) & W (C) 2001 3 IR 622 2000/13/4960 2000 IEHC 199

CONSTITUTION ART 42.5

N (E) & N (M L) v HEALTH SERVICE EXECUTIVE (HSE) & ORS 2006 4 IR 374 2006/42/8914 2006 IESC 60

GUARDIANSHIP OF INFANTS ACT 1964 S6(4)

MCB (J) v E (L) 2010 4 IR 433 2010/31/7671 2010 IEHC 123

MCB v E 2011 3 WLR 699 2011 AER (EC) 379 2011 2 FCR 382 2011 1 FLR 518 2011 FAM 364 2010 AER (D) 100 (OCT) 2010 ECR I-8965 (CASE C-400/10 PPU)

HEALTH ACT 1953 S4

S (A) (ORSE B (A)) v B (R) 2002 2 IR 428 2001/21/5790

CONSTITUTIONAL LAW

Children

Direction on question affecting welfare of infant - Vaccination - Joint guardianship - Unenumerated rights of mother - Principle of best interests of child - Family as recognised in Constitution - Presumption of constitutionality - McKenzie friend - Admissibility of medical evidence not submitted to Circuit Court - Refusal to grant adjournment - Whether mother entitled to exercise veto on vaccinations - Whether Circuit Court judge acted in excess of jurisdiction - P(A) v The Director of Public Prosecutions [2011] IESC 2, [2011] 1 IR 729; K(J) v W(V), [1990] 2 IR 437; O'R(W) v H(E) [1996] 2 IR 248; McD v L [2008] IEHC 96, [2009] IESC 81, [2010] 2 IR 199; North Western Health Board v W(H) and W(C) [2001] 3 IR 622; N v HSE [2006] IESC 60, [2006] 4 IR 374; B(R) v S(A) [2002] 2 IR 428; McB(J) v E(L) [2010] IEHC 123, [2010] 4 IR 433; [2010] IESC 48 (Unrep, SC, 30/7/2010) and McB(J) v E(L) Case C-400/10, [2010] ECR I-8965 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 60 r 2 and O 84 - Guardianship of Infants Act 1964 (No 7), ss 3, 6, 6A and 11 - Family Law (Maintenance of Spouses and Children Act) 1976 (No 11), s 5A - Health Act 1953 (No 26), s 4 - Constitution of Ireland 1937, Articles 40.3, 41 and 42 - Appeal of refusal to grant judicial review dismissed (274/13 - SC - 19/12/2013) [2013] IESC 60

O'S v Doyle

Facts: These proceedings concerned an appeal against the judgment of the High Court dismissing the appellant"s application seeking judicial review of a decision and order of the respondent, made on the 14th June 2012, in a District Court appeal. The appeal arose from an issue as to whether T.B., then a five year old boy, should receive a 4-in-1 and MMR booster injections. The appellant, T.B."s mother, opposed this course of action whilst T.B."s father, the notice party, was in favour of the proposal. The notice party brought an application to the District Court for an order directing that the proposed injections proceed, pursuant to s. 11(1) of the Guardianship of Infants Act 1964 ('the 1964 Act'), which was granted. The appellant appealed this decision to the respondent, but this was dismissed. Similarly, an application seeking judicial review of the respondent"s decision was rejected by the High Court. It was that decision that was subject of this appeal to the Supreme Court.

Before the High Court, the appellant appeared as a self-litigant and sought, inter alia, an order of certiorari quashing the decision of the 14 ^th June 2012, a declaration that to order T.B."s vaccination contrary to the wishes of his mother would be in breach of s. 4 of the Health Act 1953 ('the 1953 Act'), and a prohibitory injunction preventing this vaccination without the consent of the appellant. She had, inter alia, argued that the respondent had no jurisdiction to affirm the District Court"s order because to the effect of s. 4 of the 1953 Act; that the respondent had failed to address the issue of jurisdiction adequately because although there were concerns over whether the respondent had jurisdiction, she affirmed the District Court"s order stating that the appellant could seek to judicially review her decision, in breach of the appellant"s constitutional right to a fair hearing; that if it could be said that the respondent did address the issue of jurisdiction, she erred in reaching the decision. She had also argued that she was entitled to stop the vaccinations because of her unenumerated right as a mother under Article 40.3 of the Constitution. The application for judicial review was rejected on the basis that where there is a situation where guardians of equal say disagree on a course of action to be taken in respect of a child and the matter is brought before the courts, the principle of the best interests of the child applied with all guardians being entitled to express their views.

Held by MacMenamin J (with Denham C.J., Murray J., Fennelly J. and Clarke J. concurring) that the appellant"s argument that she was entitled to stop the vaccinations because of her unenumerated right as a mother under Article 40.3 of the Constitution was ill-founded because she was unmarried. This was because the constitutional right that she relied on applied to the protection of the 'constitutional family', namely one that was founded on a marriage, which did not apply to the appellant. The appellant could not, therefore, say that she automatically had a higher right than the notice party in regards to the making of decisions that affected T.B.. It was also said that the extent of the rights of an unmarried father who was also a legal guardian would depend on the relationship he had with the child. There was no doubt in this case that the notice party had fulfilled his parental duties to T.B. diligently, therefore his views were said to carry weight. For that reason, both parents had been entitled to express their views in regards to the application of the principle of the best interests of the child, as laid down in s. 3 of the 1964 Act.

The notice party had brought an application before the District Court pursuant to s. 11(1) of the 1964 Act. It was held that the notice party had been entitled to do so because this section permitted any legal guardian to apply the court for a determination of an issue regarding the child"s welfare. The appellant had then argued that s. 4 of the 1953 Act made it unlawful for a declaration to be made ordering T.B."s vaccination contrary to her wishes. However, it was held that that section did not directly address the situation of medical treatment in respect of a child. On the other hand, the 1964 Act did. Consequently, it was said that the 1964 Act and the principle of the best interests of the child were constitutionally sound and were to be applied in these circumstances.

Appeal dismissed.

1 Judgment of Mr. Justice MacMenamin, delivered on the 19th day of December, 2013

2 Judgment delivered by MacMenamin J.

Introduction

3 1. This is an appeal against the judgment and order of the High Court (Moriarty J.), wherein that court dismissed the appellant's application seeking judicial review of the decision and order of the respondent, Her Honour Judge Doyle, of the 14 ^th June, 2012, in a District Court appeal. It is necessary to set out the procedural background to the appeal in some detail.

4 2. This appeal arises from an issue as to whether T.B., then a five year old boy, should receive 4-in-1 and MMR booster injections. The mother opposes this course of action. She is the appellant. The father is in favour of this proposal. He is the notice party, D.B. On the 23 ^rd May, 2012, the District Court, sitting in the area where the second named appellant, T.B., resides, granted an order directing the booster immunisation injections on him were to proceed. The application giving rise to this order was brought by his father, D.B., pursuant to s. 11(1) of the Guardianship of Infants Act 1964 ("the 1964 Act"). It was resisted by T.B.'s mother, C.O'S., the first named appellant herein. That section, as amended by the Children Act 1997, provides:

"Any person being a guardian of a child may apply to the court for its direction on any question affecting the welfare of the child and the court may make such order as it thinks proper."

5 Welfare of a child, as defined in s. 2 of the Act of 1964, as substituted by s. 4 of the Children Act 1997, comprises its "religious and moral, intellectual, physical and social welfare." Section 3 of the 1964 Act, as amended, also provides:

"Where in any proceedings before any court the custody, guardianship or upbringing of a child, or the administration of any property belonging to or held on trust for a child, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration."

6 3. T.B. was born on the 27 ^th March, 2007, and is now aged 6 years. The mother and father of the child were not, and are not, married. However, well prior to the District Court application just referred to, the father had applied to the District...