RE F.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 04 July 2007
• Neutral Citation: [2007] IESC 26
• Court: Supreme Court
• Date: 04 July 2007

[2007] IESC 26

THE SUPREME COURT

Geoghegan J.

Fennelly J.

Kearns J.

37/05

DOLAN (WARDS OF COURTS), IN RE

IN THE MATTER OF WARDS OF COURT

Respondent

AND

IN THE MATTER OF FRANCIS DOLAN

Appellant

GENERAL ORDERS IN LUNACY 1879

LUNACY REGULATION (IRELAND) ACT 1871 S11

LUNACY REGULATION (IRELAND) ACT 1871 S12

D, RE 1987 IR 449

EASTERN HEALTH BOARD v M (K) & M (K) 1999 2 IR 99

COURTS OF JUSTICE ACT 1924 S19

GOVT OF IRELAND ACT 1920

LAW REFORM COMMISSION CONSULTATION PAPER ON LAW & THE ELDERLY 2003 PARA 4.10 (CP 23-2003)

COURTS OF JUSTICE ACT 1936 S9

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S9

Abstract:

Wardship - Jurisdiction vested in High Court - Whether legal impediment to issue being tried as to whether open to President to protect monies recovered by appellant by means other than making him ward of court

Sometime after his birth the appellant was diagnosed as having cerebral palsy. Medical negligence proceedings were instituted and there was an approved settlement under which £3 million was paid into court. The appellant’s parents took strong objection to any idea that their son should be made a ward of court. This was an appeal from the order of the High Court directing the trial of an issue as to whether or not the appellant was of unsound mind and incapable of managing his person and property

Held by the Supreme Court (Geoghegan, Fennelly and Kearns JJ) in remitting the case to the President of the High Court that there was no legal impediment to an issue being tried as to whether it was open to the President to protect the monies recovered by the appellant by means other than making him a ward of court and if so whether such a course of action would be desirable.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Geoghegan delivered on the 4th day of July 2007

2 This is an appeal from an order of the High Court (Wards of Court) (Finnegan P.) against an order directing that the following issue be tried without pleadings namely -

"Whether or not the respondent, Francis Dolan, is of unsound mind and incapable of managing his person and property".

3 To put the appeal and in particular the notice of appeal into context it is necessary to give a brief narrative as to the background to this case. The above-named appellant, through his mother and next friend, instituted medical negligence proceedings which came on for hearing in the High Court in October 2001. Sometime after his birth, the appellant was diagnosed as having cerebral palsy and it was alleged in the proceedings that that condition resulted from negligence on the part of his doctors. After running some days, there was an approved settlement of the case under which £3 million was paid into court for the benefit of the appellant. An order was made allowing some disbursements out of the monies to be paid to the parents and the balance to be retained in court pending an application to the President of the High Court exercising his Wards of Court jurisdiction.

4 From the very start, the parents, who it would appear, are in every way excellent parents took strong objection to any idea that their son should be made a Ward of Court. They had more than one objection. They took the view supported by their family doctor, Dr. Peter Keogh, that their son could not properly be described as "of unsound mind". Dr. Keogh while acknowledging in a report that the appellant was not capable of managing his financial affairs "as he does not have the mental capacity to understand the issues involved" nevertheless asserted the following:

"Francis is not of unsound mind. This is a psychiatric diagnosis denoting mental illness and he is not suffering from mental illness. I have known Francis since he was very young and have never seen any evidence of mental illness."

5 As is pointed out in the judgment of Kelly J. to which I will be referring, the case law has given a special meaning to "unsound mind" in the Wards of Court context but that was clearly to get round the legal difficulties arising from the terminology in the Lunacy (Regulation) statute. It is more than understandable that parents would take umbrage at the terminology.

6 The parents in this case viewed with horror the terminology used in the Lunacy Regulation (Ireland) Act, 1871 and the General Orders in Lunacy. They were not appeased by any explanation that the language was merely procedural. Most importantly of all, however, they strongly object to the whole concept of both the person and the property of their son being under the control of the President of the High Court rather than primarily under their own control. From start to finish, the parents have persisted in these objections. There is extensive correspondence with the Wards of Court Office which, for the most part, I do not think it necessary to refer to in this merely procedural appeal. What is highly relevant however is that early in 2002 an informal application was made in open court to the former President of the High Court, Mr. Justice Finnegan, on behalf of the appellant for permission to set up a trust? The proposed trust was to be created to manage the monies received by the appellant in settlement of the action. The proposal put to the court at that time involved appointing the mother, Bernadette, and the father, Francis Dolan as the initial trustees together with some non-family trustee. The proposal also involved professional money managers to oversee the investment of the funds. The former President, however, took the view that he would have no jurisdiction to entertain such a suggestion and stated that steps should now be taken to make the applicant a Ward of Court. The cash funds were placed under the control of the High Court through the Accountant General of the High Court rather than the Registrar of Wards of Court and are on deposit with the Nationwide Building Society.

7 In an affidavit sworn in separate proceedings the nature of which I will return to explain and which affidavit formed part of the materials before this court, Mr. Dolan explains that after the refusal of the President to authorise the creation of the proposed trust, he set about researching the precise nature of the Wards of Court jurisdiction and sought legal advice. He said that this took some considerable time. He explained that in early 2003, he approached the Registrar of Wards of Court, Mr. Noel Doherty, and put forward his views and those of his family as to why he did not believe that it was in the best interest of his son, Francis, that he be made a Ward of Court. The Registrar undertook to raise the matter further with the President.

8 There followed a letter dated 30th May 2003 from the Registrar enclosing a copy of an order of the President of the High Court dated the 28th May 2003. The order directed that one of the court's Medical Visitors do visit the appellant and file a report in accordance with the provisions of sections 11 and 12 of the Lunacy Regulation (Ireland) Act, 1871. There was further protest on receipt of this order the details of which it is not necessary to set out in this judgment. It is sufficient to quote the following sentence from paragraph 7 of the above mentioned affidavit.

"I say that I was surprised to receive this letter and order, particularly as I had not received notice of any hearing nor was I afforded the opportunity to make representations directly to the court. I say and believe and I am so advised that the order of the High Court dated 28th May 2003 is invalid as it fails to show jurisdiction and in any event such order should have been made if at all in open court in my presence or in the presence of my legal advisor."

9 The parents' concerns are well articulated in a letter of the 18th February, 2004 written to the Registrar of the Wards of Court by their solicitors, Eugene F. Collins. I think it appropriate to cite the entire of this letter:

"Dear Sir"

10 I refer to correspondence concerning Francis Dolan Junior on whose behalf I act and to the correspondence passing between our respective clients. Francis Dolan Junior was born on the 26th April 1982 and is 21 years of age. He is now diagnosed as suffering from spastic quadriplegia with moderate mental handicap and requires full-time care. His parents have provided this for the past 21 years. His three sisters also provide some respite care by taking their brother for weekends and short breaks.

11 It is with regret that this letter is written in circumstances where the family of Francis Dolan, including his parents, do not wish to have his affairs dealt with under the Lunacy Regulation (Ireland) Act, 1871 and the further legislation providing for the jurisdiction currently administered by the President of the High Court and your office as Registrar of Wards of Court within the office of Wards of Court.

12 The jurisdiction exercised in effect condemns a person as a lunatic following a medical inspection carried out on behalf of your office further to directions given by the President of the High Court under the relevant legislation. My clients are willing to address the investment of monies on their only son's behalf in a constructive manner and subject to such trust or cognate arrangement as may be agreed.

13 The badge of lunacy and insanity which the Lunacy Regulation (Ireland) Act, 1871 still contains within its procedures and the failure of this mid-nineteen century legislation to have any adequate regard for the constitutional entitlements and rights of Francis Dolan Junior and his family is a matter of utmost concern to my clients. The family, including Francis Dolan Junior, have rights under the Constitution of Ireland which the current legislation fails to adequately respect or recognise. In...