FN v Minister for Education

• Jurisdiction: Ireland
• Judgment Date: 24 March 1995
• Date: 24 March 1995
• Docket Number: [1994 No. 416 J.R.]
• Court: High Court

F.N. v. Minister for Education

F.N. (a minor suing by his next friend M.H.)

Applicant

and

The Minister for Education, The Minister for Health, Ireland and The Attorney General

Respondents

The Eastern Health Board, Notice Party

[1994 No. 416 J.R.]

High Court

Constitution - Child - Nature of child's constitutional rights - Whether State under obligation to defend and vindicate child's rights - Whether State under obligation to provide detention and treatment for hyperkinetic child in absence of parents - Whether any limit on State's obligation to cater for needs of child where parents unable to do so - Constitution of Ireland, 1937, Article 40, s. 3 and Article 42, s. 5.

Children - Courts empowered to order detention of child in named industrial school on application of parent or guardian or fit person - Order not to be made without prior consent of manager of named school - Whether order inoperative without such consent - Whether applicant for order still responsible for child if inoperative order made - Children Act, 1908 (8 Edw. VII, c. 67), s. 58, sub-s. 4 and s. 62, sub-s. 1.

By Article 40, s. 3 of the Constitution of Ireland, 1937, the State guarantees to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

Article 42, s. 5 provides as follows:—

"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."

Section 58, sub-s. 4 of the Children Act, 1908, empowers the District Court, on the application of a guardian or parent or fit person who is unable to control a child and who understands the consequences of an order under the subsection, to order that such child be sent to a certified industrial school named in the order. By s. 62, sub-s. 1, the school named in the order shall be a school the managers of which are willing to receive the child; but if it is impossible to specify the school in the order, it may subsequently be endorsed thereon.

The applicant was a twelve year old child whose father was unknown and whose mother, now dead, had had no contact with him since an early age. After a period of time with foster parents, an "out of control" order had been obtained by the notice party, which had subsequently provided various types of accommodation for him. He was ultimately diagnosed as suffering from a hyperkinetic conduct disorder by a consultant psychiatrist who recommended a period of time in a secure unit which could contain him safely while confronting his behaviour. That diagnosis was confirmed by a number of other professionals. On the application of the notice party, an order was made under s. 58, sub-s. 4 of the Act of 1908; however, the managers of the industrial school named in the order were not willing to take him and had not been consulted beforehand. The managers of the only other such school in the country were not willing to take the applicant either.

Proceedings were commenced seeking a declaration that the respondents had failed to protect and vindicate the applicant's rights under Article 40, s. 3 and Article 42 and an order of mandamus requiring the respondents to provide, forthwith, secure accommodation and to provide, forthwith, for his intellectual, physical and social education. Subsequent to the issue of proceedings, the notice party sought to place the applicant in an institution run by it to provide housing for difficult children. Counsel for the applicant contended that this institution was unsuitable for the applicant's needs, and argued that the notice party was functus officio once it had made the application for an order under s. 58, sub-s. 4 of the Act of 1908.

Held by Geoghegan J., 1, that the District Court had no jurisdiction to make the order under s. 58, sub-s. 4 of the Act of 1908 without first ascertaining that the manager of the school named in the order was prepared to take the child; that the order was therefore totally inoperative; and the notice party therefore continued to be responsible for the child and was entitled to place the child in such institution as it thought fit, subject always to the child's constitutional rights.

2. That a child had a constitutional right to be fed and to live, to be reared and educated and to have the opportunity of working and realising his or her full potential and dignity as a human being, and that those rights must be protected and vindicated by the State, pursuant to Article 40, s. 3 of the Constitution.

• G. v. An Bord Uchtála [1980] I.R. 32, The Adoption (No. 2) Bill, 1987[1989] I.R. 656 and M.F. v. Superintendent Ballymun Garda Station[1991] 1 I.R. 189 applied.

3. That accordingly, where there was a child with very special needs which could not be provided by the parents or guardian, there was a constitutional obligation on...