F.D (an Infant) v Registrar of Wards of Court

• Jurisdiction: Ireland
• Judgment Date: 19 March 2004
• Date: 19 March 2004
• Docket Number: [2004 2188P]
• Court: High Court

F.D. (an infant) v. Registrar of Wards of Court

F.D. (an infant) suing by his next friend B.D., F.D. and B.D.

Plaintiffs

and

Registrar of Wards of Court, Ireland and the Attorney General

Defendants

[2004] IEHC 126

[2004 2188P]

High Court

Wardship - Person of unsound mind - Nature of order in wardship - Order directing medical visit to be carried out - Whether order judicial or administrative - Whether order made could be subject of injunction - Whether court could stay execution of order - Nature of order directing gardaí to assist in carrying out visitation - Amendment of nomenclature in wardship proceedings - Lunacy Regulation (Ireland) Act 1871 (34 & 35 vict., c.22) - Courts (Supplemental Provisions) Act 1961 (No. 39), s. 9.

The plaintiff suffered with cerebral palsy and had a physical and mental disability. He resided with his family who cared for him and was confined to a wheelchair. The second and third plaintiffs, his parents, accepted that he was not capable of managing his own affairs. As a result of an action in negligence against medical personnel relating to the birth of the plaintiff, a large sum of damages was awarded to the plaintiff and approved by the High Court. The court was told that an application would be made admitting the plaintiff to wardship and the bulk of the monies were placed on deposit in the High Court. The defendant wrote to the plaintiffs indicating the necessary steps to be taken in such an application but no application was made to admit the plaintiff to wardship. A meeting took place in May, 2003 between the second plaintiff and the defendant and the second plaintiff indicated that he did not wish his son to be admitted to wardship.

The President made an order directing a medical visitor to visit the plaintiff for the purpose of inquiring into the state or condition of his mind and his ability to manage his affairs. The visit did not take place at that time. In November, 2003 new solicitors were instructed on behalf of the plaintiffs and they inquired into the possibility of creating a trust for the benefit of the plaintiff. That proposal was put to the President of the High Court who indicated that he did not have the authority to create such a trust. Further correspondence took place but no medical visit ensued. On the 9th February, 2004, the President of the High Court wrote to the plaintiffs indicating that if they did not allow a visit to take place, the assistance of the police would be invoked to ensure that the order was complied with. Such an order was in fact made and on the 23rd February, 2004, the President refused to put a stay on it. No attempt was made to set aside the original order relating to the medical visit. A medical visit then took place but the visitor required a second medical examination before he could complete his report to the President and the plaintiffs objected to a second medical visit. These proceedings were instituted seeking an injunction restraining further medical visits.

Held by the High Court (Kelly J.), in refusing the relief sought, 1, that, the order of the High Court directing a medical visitation to be carried out and the subsequent order directing the gardaí to assist in carrying out the visitation was not administrative but judicial in nature. The order made affected the constitutional rights of the plaintiff and could not be the subject of an injunction the type of which was sought. One High Court Judge could not restrain the execution of an order of another judge and the only way of arresting such an order was by way of application to set the order aside or by appeal.

In Re R Ltd. [1989] I.R. 126 andEastern Health Board v. M.K.[1999] 2 I.R. 99 considered.

2. That, in exercising his wardship jurisdiction and deciding to take the plaintiff into wardship, the President of the High Court must comply with constitutionally mandated norms. The wardship jurisdiction was a beneficent one, to assist persons such as the plaintiff who labour under a legal disability in administering property. On the present evidence, there was no basis for any order regarding the person of the plaintiff, including any order removing him from the care of his family or breaking up the family unit.

In Re D. [1987] I.R. 449 and Eastern Health Board v. M.K.[1999] 2 I.R. 99 considered.

3. That the term "person of unsound mind" had a definite legal meaning. In the circumstances of this case, it meant that the plaintiff could not manage his affairs. An application could be made by the plaintiffs under s. 9(4)(a) of the Courts (Supplemental Provisions) Act 1961 to amend the nomenclature used in the event of an order being made in wardship.

Kirby v. Leather [1965] 2 Q.B. 367 and Whysall v. Whysall [1959] 3 W.L.R. 592 considered.

4. That, there being no objection to a medical examination of the applicant per se, it was difficult to see what damage would be suffered by allowing it to take place. The normal criteria in relation to the granting of an injunction applied and in any event, any such damage could be compensated for in damages. The balance of convenience also favoured the carrying out of a medical visitation given the length of time which had passed since the approval of the settlement in the original personal injuries action.

Cases mentioned in this report:-

American Cyanamid v. Ethicon [1975] 2 W.L.R. 316; [1975] A.C. 396.

Campus Oil v. Minister for Industry and Commerce (No. 2) [1983] I.R. 89; [1984] I.L.R.M. 45.

In re D. [1987] I.R. 449; [1988] I.L.R.M. 251.

Eastern Health Board v. M.K. [1999] 2 I.R. 99; [1999] 2 I.L.R.M. 321.

In re Haughey [1971] I.R. 217.

Kirby v. Leather [1965] 2 Q.B. 367; [1965] 2 All E.R. 441.

In re R. Ltd. [1989] I.R. 126; [1989] I.L.R.M. 757.

Whysall v. Whysall [1960] P. 52; [1959] 3 W.L.R. 592; [1959] 3 All E.R. 389.

Motion on notice

The facts have been summarised in the headnote and are more fully set out in the judgment of Kelly J., infra.

A plenary summons issued on the 23rd February, 2004, seeking declaratory and injunctive relief. An appearance was entered on behalf of the second and third defendants on the 4th March, 2004 and for the first defendant on the 11th March, 2004.

A notice of motion seeking injunctive relief issued on the 23rd February, 2004, returnable for the 8th March. Grounding affidavits were filed on the 23rd and 27th February. A replying affidavit was filed by the first respondent on the 11th March and the matter was heard by the High Court (Kelly J.) on the 16th and 18th March, 2004.

Cur. adv. vult.

Kelly J. 19th March 2004

1 The plaintiff was born on the 26th April, 1982. He has cerebral palsy and is handicapped physically and mentally. He is confined to a wheelchair. The plaintiffs accept that he is not capable of managing his affairs. He has had excellent care and attention from his parents, his father who is the second plaintiff, and his mother who is the third plaintiff and also from his three sisters. No criticism is or indeed could be made of the way that he has been looked after by his family as a member of that family unit.

2 One manifestation of that care was the pursuit of an action on his behalf against medical personnel involved at or about the time of his birth and the hospital where he was born.

3 After five days of a hearing before Kearns J. an offer was made to settle that case for £3,000,000 and that settlement was approved by Johnson J.

4 In his order of the 23rd October, 2001, it is recited that that judge was told by counsel on behalf of the plaintiff in that case that an application would be made in due course to the President of the High Court. Johnson J. ordered the bulk of the money, namely £2.8 million to be placed on deposit with the...