DG v Eastern Health Board

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [S.C. No. 205 of 1997]
• Court: Supreme Court

Supreme Court

[S.C. No. 205 of 1997]

D.G. v. Eastern Health Board

D.G. (A minor suing by his guardian ad litem M.R.), Applicant

and

The Eastern Health Board, Ireland and The Attorney General

Respondents

Cases referred to in this report:—

The Attorney General v. X [1992] 1 I.R. 1; [1992] I.L.R.M. 401.

S.C. v. Minister for Education (Unreported, High Court, McGuinness J., 20th December, 1996).

D.D. v. Eastern Health Board (Unreported, High Court, Costello P., 3rd May, 1995).

M.F. v. Superintendent Ballymun Garda Station [1991] 1 I.R. 189; [1990] I.L.R.M. 767.

G. v. An Bord Uchtála [1980] I.R. 32; (1978) 113 I.L.T.R. 25.

G.L. v. Minister for Justice (Unreported, High Court, Geoghegan J., 24th March, 1995).

Re M. (a minor) (secure accommodation order) [1995] 3 All E.R. 407.

F.N. v. Minister for Education [1995] 1 I.R. 409; [1995] 2 I.L.R.M. 297.

The People v. Shaw [1982] I.R. 1.

The People (Attorney General) v. O'Callaghan [1966] I.R. 501.

P.S. v. Eastern Health Board (Unreported, High Court, Geoghegan J., 27th July, 1995).

The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

D.T. v. Eastern Health Board (Unreported, High Court, Geoghegan J., 24th March, 1995).

Constitution - High Court - Jurisdiction - Whether High Court has jurisdiction to do all things necessary to vindicate the personal rights of citizen - Constitution of Ireland, 1937, Article 40, s. 1, Article 40, s. 3, sub-ss. 1 and 2, Article 40, s. 4, sub-s. 1, Article 42, ss. 4 and 5.

Constitution - Child - Nature of child's constitutional rights - High Court - Jurisdiction - Detention in penal institution - Whether High Court has jurisdiction to order detention of child in penal institution where child has not been charged with or convicted of criminal offence - Constitution of Ireland, 1937, Article 40, s. 1, Article 40, s. 3, sub-ss. 1 and 2, Article 40, s. 4, sub-s. 1, Article 42, ss. 4 and 5.

Children - Health board required to promote welfare of children in its area who are not receiving adequate care and protection - Child Care Act, 1991 (No. 17).

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgments of Hamilton C.J. and Denham J. infra.

By order of the High Court (Kelly J.) of the 28th April, 1997, the applicant's next friend was appointed his guardian ad litem in these proceedings; he was granted leave to apply for judicial review and leave to apply for interlocutory relief. The originating notice of motion for judicial review was issued on the 30th April 1997, returnable for the 6th May, 1997. It was adjourned from time to time. Interlocutory orders as to the accommodation of the applicant were issued by the High Court (Kelly J.) on the 13th June, 1997, 17th June, 1997 and the 27th June, 1997. The interlocutory order of the 27th June, 1997, was appealed to the Supreme Court.

Notice of appeal was filed on the 1st July, 1997. The appeal was heard by the Supreme Court (Hamilton C.J., O'Flaherty, Denham, Keane and Murphy JJ.) on the 9th July, 1997.

The Constitution of Ireland, 1937, provides, by Article 40, s. 1 that all citizens shall, as human persons, be held equal before the law. It goes on to state that 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.

By Article 40, s. 3, sub-s. 1 the State guarantees to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Article 40, s. 3, sub-s. 2 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."

Article 42, s. 4, sub-s. 1 provides:—

"The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation."

Article 42, s. 5 states:—

"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."

The Child Care Act, 1991, provides by s. 3, sub-s. 1 that it shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

The applicant was, at the time of the Supreme Court hearing, 17 years of age. He had been in the care of the first respondent since he was two years old. Although not mentally ill, he had a serious personality disorder and a history of criminal activity, violence and arson. He had in the past absconded from non-secure institutions. The applicant was homeless and residing on a temporary basis in a voluntary charitable hostel.

The applicant's next friend was granted leave to apply for judicial review for the following reliefs: a declaration that in failing to provide for suitable care and accommodation for the applicant and in discriminating against him as compared with other children, the respondents had deprived the applicant of constitutional rights under Article 40 and 42 of the Constitution of Ireland, 1937, with particular reference to the provisions of Article 40, s. 1, Article 40, s. 2, sub-s. 1, Article 40, s. 3, sub-s. 2 and Article 42, s. 5 of the Constitution; mandamus, directing the respondents to provide suitable care and accommodation for the applicant; an injunction, directing the respondents to provide suitable care and accommodation for the applicant and damages.

On the 27th June, 1997, it was directed, inter alia, that the applicant be arrested by the Commissioner and members of an Garda Síochána and conveyed to St. Patrick's Institution and further, that he be detained in St. Patrick's Institution until the 18th July, 1997, during which time he was to be subject to the discipline of St. Patrick's Institution, there being no other facility in a position to accommodate the applicant.

The applicant appealed to the Supreme Court and claimed that the learned trial judge did not have jurisdiction to order his detention in a penal institution, that he was wrong in law and fact in exercising the inherent jurisdiction of the High Court in such a manner as to direct such detention, that having regard to the test that the best interests of the applicant were the first and paramount consideration, he had failed to properly protect the applicant's constitutional right to liberty and that he had failed to achieve the correct and proper balance between the need to protect the applicant and the applicant's right to liberty.

Held by the Supreme Court (Hamilton C.J., O'Flaherty, Keane and Murphy JJ.; Denham J. dissenting), in dismissing the appeal, 1, that the courts had the jurisdiction to do all things necessary to vindicate the personal rights of the citizen.

The State (Quinn) v. Ryan [1965] I.R. 70 followed.

2. That where the interacting rights of the applicant could not be harmonised, a priority of rights was to be applied. The welfare of the applicant took precedence over the rights to liberty of the applicant.

The Attorney General v. X [1992] 1 I.R. 1 followed.

3. (Denham J. dissenting) That the learned trial judge had jurisdiction to make the order which was the subject matter of the appeal. It was a jurisdiction which should be exercised only in extreme and rare occasions, when the court was satisfied that it was required for a short period in the interests of the welfare of the child and there was, at the time, no other suitable facility.

4. (Denham J. dissenting) That the learned trial judge had exercised his jurisdiction in a lawful manner, consistent with the requirements of the welfare of the applicant.

Per curiam: The exercise by the High Court of its jurisdiction in this regard should not be used by the respondents to relieve them of their statutory obligations in regard to the applicant. They should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant and if no such arrangements could be made, he should not be detained in a penal institution.

Per Murphy J.: When the applicant was released from St. Patrick's Institution on the 18th July, 1997, it would be preferable that the High Court make no order at all rather than direct the detention of the applicant in a penal institution until he attained the age of 18 years.

Cur. adv. vult.

Hamilton C.J.

This is an appeal brought on behalf of D.G. (a minor) by his guardianad litem M.R. (hereinafter referred to as the applicant) against the judgment and order of Kelly J. given and made on the 27th June, 1997.

The relevant portion of said order is as follows:—

"It is ordered that the Governor of St. Patrick's Institution forthwith do detain in his custody the said applicant for a period of three weeks during which time:—

The applicant is to be subject to the discipline of the said St. Patrick's Institution

A full psychiatric assessment is to be carried out on the applicant at the clinic in St. Patrick's Institution . . .

And the Court doth recommend that during the twenty-four hour period following the handover of custody of the applicant to the Governor of St. Patrick's Institution that the said Governor do dispense with visitation restrictions insofar as is possible consonant with the good running of the institution so as to allow officials of the Eastern Health Board access to the applicant.

And it is ordered that this matter be listed before this Court on Friday, the 18th July, 1997, for further review."

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