RE F.D.

JurisdictionIreland
JudgeMr. Justice Garrett Sheehan
Judgment Date29 July 2008
Neutral Citation[2008] IEHC 264
CourtHigh Court
Docket Number[2008 118 MCA],118 MCA 2008
Date29 July 2008

[2008] IEHC 264

THE HIGH COURT

118 MCA 2008
[WOC 1679]
Dolan, In re
IN RE FRANCIS DOLAN A RESPONDENT

DOLAN, RE 2008 1 ILRM 19

LUNACY REGULATION (IRELAND) ACT 1871 S15

LUNACY REGULATION (IRELAND) ACT 1871 S12

LUNACY REGULATION (IRELAND) ACT 1871 S11

R v R 1984 IR 296

D, RE 1987 IR 449

L (H) v GOVERNOR & CO OF THE BANK OF IRELAND 1978 ILRM 160

SUCCESSION ACT 1965 S117

LUNACY REGULATION (IRELAND) ACT 1871 S68

COURTS ACT 1971 S4

MCG (G) v W (D) 2000 4 IR 1 2000 2 ILRM 451

FAMILY LAW ACT 1995 S29

WARDS OF COURT

Jurisdiction

Objection to wardship jurisdiction - Whether High Court had inherent jurisdiction to establish alternative arrangement for protection of award of damages in advance of determination of unsound mind - R v R [1984] IR 296 and In re D [1987] IR 449 considered; GMcG v DW ( No 2) [2000] 4 IR 1 applied - Lunacy Regulation (Ireland) Act 1871 (33 & 35 Vic, c 22), s 12 - Court Supplemental Provisions Act 1961 (No 39), s 9 - Held no jurisdiction (2008/118MCA - Sheehan J - 29/7/2008) [2008] IEHC 264

Re D(F)

Facts: The respondent received £3milion for injuries arising from birth injuries. Proceedings were issued by his parents challenging the constitutionality of the Lunacy Regulation (Ireland) Act, 1871. The President of the High Court directed that the preliminary issue be tried as to whether the High Court had jurisdiction to establish a trust scheme or other form of arrangement as proposed in a draft deed of trust in advance of a determination as to whether the respondent was of unsound mind and incapable of managing his property. The respondent contended that the High Court had jurisdiction.

Held by Sheehan J. that the draft deed of trust envisaged the Court establishing a trust. The full and original jurisdiction of the High Court was to deal with justifiable controversies and the creation of a trust was not a justifiable controversy. The Court had no jurisdiction inherently otherwise and the question posed by the President would be answered in the negative.

Reporter: E.F.

1

On the 4 th December, 2007, the President of the High Court directed in accordance with the decision of the Supreme Court in these proceedings on the 4 th July, 2007, that the following preliminary issue was to be tried by this Court:-

"Does the High Court have jurisdiction (inherent or otherwise) not limited to and without exercising the jurisdiction provided for under section 9 of the Courts (Supplemental Provisions) Act 1961 or the Lunacy Regulation (Ireland) Act 1871 to establish a trust scheme or other form of arrangement as proposed in the draft deed of trust between the Respondent's family and the Court in advance of a determination by a judge or jury as to whether the Respondent is of unsound mind and incapable of managing his person and property to protect the monies of the Respondent where the Respondent and the Respondent's family object to the exercise of wardship jurisdiction."

2

Mr. Salafia, counsel for the respondent, contends that this Court does have the necessary jurisdiction while Mr. Clarke for the Attorney General and Mr. O'Donnell for the Office of the General Solicitor for Minors and Wards of Court both say that the answer to the question should be in the negative.

3

The background is comprehensively set out in the Supreme Court judgment of Mr. Justice Geoghegan delivered on the 4 th July, 2007, In the Matter of Wards of Court and In the Matter of Francis Dolan [2007] I.E.S.C. 26, [2008] I.L.R.M. 19.

4

Francis Dolan Junior was born on the 26 th April, 1982. He suffers from cerebral palsy and is diagnosed as suffering from spastic quadriplegia with moderate mental handicap as a result of which he requires full-time care. His parents have provided this full-time care for his entire life and wish to continue to do so. Francis Dolan Junior has three sisters. In the introduction to the submissions on behalf of Francis Dolan Junior his legal team state that they are made on behalf of Francis Dolan Junior and his immediate family.

5

Francis Dolan Junior received a judgment for damages for IR£3m for injuries suffered at birth. Of that sum IR£200,000 was paid out and the remaining IR£2.8m was paid into court and placed on deposit with the Accountant General.

6

The respondent's parents do not believe that it is in the best interests of their son and their family that Francis Dolan Junior be made a Ward of Court and perceive wardship as an unnecessary and unwarranted interference in their family life. They further object to their son being declared of unsound mind and to the social connotations which they claim arise from adjudication under the Lunacy Regulation (Ireland) Act 1871. The parents did not petition the court in accordance with s. 15 of the Lunacy Regulation (Ireland) Act 1871, and this question arises in the context of their principled resistance to their son being made a Ward of Court.

7

The matter then proceeded under s. 12 of the Act of 1871. This procedure is commenced by the President of the High Court's medical visitor examining the respondent and furnishing a report for consideration by the President of the High Court. If the view of the medical visitor is that the respondent is of unsound mind then an inquiry order is made directing that inquiry must be had as to the soundness of mind of Francis Dolan Junior.

8

On the 21 st November, 2003, the solicitors for Francis Dolan Junior requested the General Solicitor for Minors and Wards of Court to ask the President of the High Court to consider the creation of a trust for the management of the funds in court. The President of the High Court refused this request on the basis that he had no authority to create such a trust and this was communicated to the respondent by letter dated the 28 th November, 2003.

9

On foot of the requisite reports of the medical visitor, the wardship proceedings were initiated by the President of the High Court pursuant to ss. 11 and 12 of the Act of 1871. A notice of objection to an inquiry was subsequently filed by the respondent's parents and by the respondent on the 8 th October, 2004. The notice of objection contained, inter alia, constitutional objections to the procedure under ss. 11 and 12 of the Act of 1871. The respondent claimed that these objections should be heard prior to, or at least during, the course of the s. 12 wardship proceedings.

10

By order of the President of the High Court dated the 20 th December, 2004, (amended by further order dated the 21 st January, 2005), the President directed that the issue as to whether or not the respondent Francis Dolan Junior was of unsound mind and incapable of managing his person and property was to be tried before a judge of the High Court and a jury sitting in Dublin.

11

11. A notice of trial was served on the solicitors for Francis Dolan Junior on the 27 th January, 2005.

12

The respondents lodged a notice of appeal to the Supreme Court on the 31 st January, 2005, on the grounds that the President of the High Court had erred in law and/or in fact and/or in the exercise of his discretion in regard to the orders made in the wardship proceedings.

13

The respondents argued that they were entitled to have objections tried in advance of the wardship issue and in particular certain constitutional challenges to the wardship jurisdiction. A central part of the Supreme Court hearing was concerned with the question as to whether the High Court had jurisdiction to establish a trust to protect Francis Dolan's funds outside wardship.

14

Plenary proceedings challenging the constitutionality of the Act of 1871 were instituted in 2004 by Francis Dolan Junior's parents on their own behalf and on behalf of their son. These proceedings sought, inter alia, an injunction restraining the medical visitor from examining Francis Dolan Junior. His parents claimed that the process should be halted as it will inexorably lead to the making of a wardship order, which they allege is in breach of the constitutional rights of their son.

15

On the 19 th March, 2004, Kelly J., refused to set aside the order of the President of the High Court regarding the proposed examination by the medical visitor and refused to grant the injunction sought.

16

In the course of the Supreme Court judgment Geoghegan J. directed that the matter be returned to the High Court for consideration of the question that is now before this Court.

17

The respondent's submissions regarding the court's jurisdiction to establish a trust as a means of protecting the interests of Francis Dolan Junior as an alternative to wardship fall under a number of headings.

18

The respondent first of all submits that the correct starting point in considering the question before this Court must be that the High Court has...

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