FN v Minister for Education

JurisdictionIreland
CourtHigh Court
Judgment Date24 March 1995
Docket Number[1994 No. 416 J.R.]
Date24 March 1995

High Court

[1994 No. 416 J.R.]
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

Cases mentioned in this report:—

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

The Adoption (No. 2) Bill, 1987IRDLRM [1989] I.R. 656; [1989] I.L.R.M. 266.

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

The State (C.) v. FrawleyIR [1976] I.R. 365.

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.

Judicial review.

The facts and the relevant constitutional provisions have been summarised in the headnote and fully set out in the judgment of Geoghegan J.,infra.

On the 15th November, 1994, the High Court (Kinlen J.) granted liberty to the applicant to apply for relief by way of application for judicial review for:—

  1. (a) A declaration that the respondents had failed to protect and vindicate the applicant's constitutional rights under Article 40, s. 3 and Article 42 of the Constitution;

  2. (b) An order of mandamus directing the respondents to protect and vindicate the applicant's constitutional rights as aforesaid by, inter alia,

    1. (i) providing forthwith secure accommodation;

    2. (ii) providing forthwith for his religious, moral, intellectual, physical and social education.

The application was heard by the High Court (Geoghegan J.) on the 9th and 10th February, 1995.

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...

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