J. W. v Health Service Executive

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 19 February 2014
• Neutral Citation: [2014] IESC 8
• Court: Supreme Court
• Date: 19 February 2014

W (J) (a minor) v Health Service Executive & Anor

Between/

J. W. (a minor suing by his mother and next friend J. W.)

Applicant/Appellant

and

The Health Service Executive

Respondent

and

(by order of the Supreme Court of the 18 th October, 2013) G. W.

Notice Party

[2014] IESC 8

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

Appeal No: 409/2013

THE SUPREME COURT

CONSTITUTIONAL LAW

Habeas corpus

Appeal of refusal of relief under Article 40 of Constitution - Mootness - Exceptional circumstances in which moot case could proceed - Point of law of exceptional public importance - Bona fide interest - Test case - Whether appeal moot - Whether exceptional circumstances - Whether court should exercise discretion to hear appeal - G v Collins [2004] IESC 38, [2005] 1 ILRM 1 applied - Irwin v Deasy [2010] IESC 35, (Unrep, SC, 14/5/2010); O'Brien v PIAB (No 2) [2006] IESC 62, [2007] 1 IR 328; Okunade v Minister for Justice, Equality and Law Reform & Ors [2012] IESC 49, [2012] 3 IR 152 and D v Groarke [1990] 1 IR 305 considered - Child Care Act 1991 (No 17), s 13 - Constitution of Ireland 1937, Arts 26 and 40 - Appeal dismissed (409/13 - SC - 19/2/2014) [2014] IESC 8

W v Health Service Executive

Facts: These proceedings concerned an appeal of a High Court decision refusing the minor appellant relief under Article 40 of the Constitution of Ireland. On the 26 ^th September 2013, the appellant was subject to an 8 day emergency care order by the District Court. An enquiry was then brought on behalf of the appellant by his mother under Article 40 of the Constitution to challenge the lawfulness of his custody, but this was rejected in the High Court. An appeal of this decision was initiated in the Supreme Court, which was adjourned when the Court was informed that the matter was due to be discussed in the District Court two days later. Subsequently, the District Court refused to grant an interim care order in respect of the appellant and he was released into the custody of his mother. The appellant”s father was then joined to the Supreme Court proceedings as a notice party.

Both the appellant and the respondent stated that, given the development in the District Court, the appeal was moot. The respondent argued that an inquiry under Article 40 of the Constitution of Ireland could not be held when the person in issue is no longer in custody. On the other hand, the appellant argued that even though the appeal was moot, the judgment of the High Court raised issues of such public importance that the Court should exercise its discretion and hear the appeal anyway.

Held by Denham C.J. (with Murray J., Hardiman J., Fennelly J., and O”Donnell J. concurring) that it was clear that the appeal was moot given the appellant”s release from custody. It was also said that although proceedings that had become moot should be discontinued, a court had a discretion to hear the matter anyway if there were exceptional circumstances. However, it was held that the facts of the case did not give rise to issues of such public importance that would justify a decision to exercise judicial discretion and hear the appeal.

Counsel for the appellant had argued that two legal points of significant public importance had arisen from the High Court judgment: a finding that the appellant”s mother did not need to be heard when the emergency application was brought because she could make submissions at the interim hearing; and the judgment”s interpretation of the decision D v. Groarke [1990] 1 I.R. 305, which, it was submitted, had the effect of making a mandatory ruling discretionary. It was, however, determined that the Court did not accept that the High Court judge interpreted the case of D v. Groarke in the manner that was suggested by Counsel for the appellant, and so did not give rise to any new legal principles. It was also said that although the appellant”s mother was given little notice to consider the respondent”s emergency application, the circumstances and the nature of the respondent”s application justified a prompt decision. This did not mean that the appellant”s mother did not have an opportunity to be heard to some extent.

For those reasons, the Court refused to exercise its discretion to hear the appeal in circumstances where it had become moot.

Appeal dismissed.

CONSTITUTION ART 40

D, STATE v GROARKE 1990 IR 305

GOOLD v JUDGE COLLINS & ORS 2005 1 ILRM 1 2004/19/4389 2004 IESC 38

IRWIN v DEASY UNREP SUPREME 14.5.2010 2010 IESC 35

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD 2007 IR 328 2007 1 ILRM 304 2006/44/9395 2006 IESC 62

OKUNADE v MIN FOR JUSTICE 2012 3 IR 152 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

CHILD CARE ACT 1991 S13

CONSTITUTION ART 26

1 Judgment delivered on the 19th February, 2014 by Denham C.J.

2 Judgment delivered by Denham CJ [Nem diss]

3 1. This is an appeal by the minor appellant from the judgment and order of the High Court (Ryan J.) delivered on the 30 ^th September, 2013, which refused the appellant's application for relief under Article 40 of the Constitution.

4 2. Relevant dates are as follows:-

5 Thursday the 26 ^th September. 2013: 8 day emergency care order made by the District Court.

6 Friday the 27 ^th September, 2013: ex parte application made to High Court to open Article 40 enquiry.

7 Saturday the 28 ^th September. 2013: the High Court (Ryan J.) heard the Article 40 enquiry and reserved ruling over the weekend.

8 Monday the 30 ^th September. 2013: the High Court gave judgment and declined to order the release of the appellant.

9 Tuesday the 1 ^st October. 2013: appeal mentioned before the Supreme Court which, having been informed the matter was back before the District Court on Thursday, adjourned the appeal to Friday the 4 ^th October, 2013, for mention.

10 Thursday the 3 ^rd October, 2013: following an extensive hearing the District Court declined to make an interim care order and the appellant was released back into the custody of his parents, the subject of supervision order with directions.

11 Friday the 4 ^th October, 2013: having been updated on this new development the Supreme Court fixed the 30 ^th October, 2013, as the hearing date for submissions on the question of mootness.

12 Wednesday the 16 ^th October, 2013: the appellant's father issued a motion seeking to be joined to the appeal.

13 Friday the 18 ^th October, 2013: the motion was moved before the Supreme Court and the Court joined the appellant's father to the appeal, whilst making it clear that it was in no way indicating that he would be entitled to any costs order in his favour regardless of the outcome of the appeal.

Moot

14 3. A preliminary issue arises in this case as to whether the appeal is moot. The Health Service Executive, the respondent, referred to as "the respondent", submitted that the appeal is now moot by reason of the hearing in the District Court on the 3 October, 2013. It was submitted that as a matter of logic, you cannot hold an Article 40 inquiry when the person in issue is no longer in custody, as the only relief available is an order for the release of that person.

15 4. On behalf of the appellant it was submitted, inter alia, that it could not be said that there is no longer any dispute between the parties, and that there are issues of public importance, which are recurring in the District Court, which, it was submitted, made this an exceptional case which should be considered by the Court.

16 5. In oral submissions it was agreed by both parties that the appeal was moot. Thus, the only issue was whether the appeal fell within an exception to the general rule; the general rule being that appeals which are moot are not heard and determined by the Court, but that in exceptional circumstances the Court would exercise its discretion and hear the appeal.

An Exception?

17 6. Mr. O'Higgins S.C., counsel for the appellant, the minor, submitted that the appeal should be heard as there were a number of important legal points arising on the judgment of the High Court. He paraphrased these as including: (i) what he submitted was a finding that the mother need not be heard until the interim hearing; and (ii) the judgment's approach to the decision D v. Groarke [1990] 1 I.R. 305, where he submitted it appeared to make a mandatory ruling discretionary.

Jurisprudence

18 7. The jurisprudence of this Court on the issue of mootness is well established. As Hardiman J. stated in G v. Collins [2005] 1 I.L.R.M. 1:-

"Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs the eventual decision would be of no practical significance to the parties."

19 8. There are exceptions to this general rule when the Court exercises a discretion and hears...