State (D. and D.) v Groarke

• Jurisdiction: Ireland
• Judgment Date: 15 July 1988
• Date: 15 July 1988
• Docket Number: [1987 No. 320 SS]
• Court: High Court

The State (D. and D.) v. Groarke

The State (at the prosecution of D. and D.)

and

Margaret Groarke and The Midland Health Board

[1987 No. 320 SS]

High Court

Practice - High Court - Constitutional issue - Challenge to validity of pre 1937 statute - Requirement by rules of court that Attomey General be notified of proceedings challenging the validity of law having regard to the provisions of the Constitution - Whether requirement extended to challenge to validity of pre 1937 statute - Whether court would consider issue in the absence of notification - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 61, r. 1..

Infants - Custody - Protection - Court order committing infant to care of health board - Validity - Whether made in accordance with law - Whether health hoard had capacity to take infant in care - Summary Jurisdiction Rules, 1909 (S.R.O. No. 952) - Children Act, 1908 (8 Edw. 7, c. 67), ss. 21, 23, 24, 28, 38 and 58 - Interpretation Act, 1937 (No. 38), s. 11 - Children Act, 1941 (No. 12), s. 10 - Health Act, 1970 (No. 1), ss. 6 and 66.

Section 24, sub-s. 1 of the Children Act, 1908, provides, inter alia, that if it appears to a Justice that there are reasonable grounds to suspect that a child has been or is being abused, neglected or assaulted in a manner likely to be injurious to its health, the Justice may issue a warrant for the removal of the child to a place of safety and his detention there until he can be brought before a court of summary jurisdiction and such court may commit him to the care of a relative or other fit person. Section 38 provides that "unless the context otherwise requires, the expression 'fit person', in relation to the care of any child . . . includes any society or body corporate established for the reception or protection of poor children or the prevention of cruelty to children." Section 66, sub-s. 2 of the Health Act, 1970, provides that "a Health Board shall make available without charge a health examination and treatment service for pupils attending a national school . . ."

By order of the District Court, pursuant to s. 24 of the Act of 1908, D.D., the child of the prosecutors, was committed to the care of the second respondent until 1995 (when the infant would reach 16 years of age), or until the order be varied or revoked. The first respondent was a social worker employed by the second respondent who dealt with the care of the infant on its behalf. The order was grounded on a finding that the infant had been a victim of sexual abuse by its father. The prosecutors denied that sexual abuse had taken place but no application was made to vary or revoke the order, nor was any appeal lodged.

The prosecutors sought to recover custody of the infant by way of proceedings in the High Court under Article 40, s. 4, sub-s. 2 of the Constitution of Ireland. They alleged, inter alia, that s. 24 of the Children Act, 1908, was inconsistent with the Constitution; that the sections only empowered the court to make emergency and not long term orders, and that the second respondent had neither the capacity nor the statutory power to take an infant in care pursuant to the section. Furthermore it was argued that the second respondent did not come within the definition of a "fit person" contained in s. 38 of the Act of 1908.

The Attorney General was not informed of the proceedings.

Held by Carroll J., in refusing the relief sought, 1, that Order 60, r. 1 of the Superior Court Rules, 1986, required that the Attorney General be notified if a question as to the validity of any law was to be considered, including statutes enacted prior to the coming into force of the Constitution of Ireland, 1937, and, accordingly the court would decline to consider the constitutional issue raised.

The State (D.C.) v. Midland Health Board (Unreported, High Court, Keane J., 31st July, 1986) and The State (Sheerin) v. Kennedy[1966] I.R. 379 considered.

2. That while the district justice had been empowered to issue an initial warrant where he had reasonable grounds to suspect abuse or neglect such grounds would not have been sufficient grounds for a committal order, which required the prosecutors to have been notified and further required that the district justice enter into a judicial consideration of the matter observing the requirements of natural and constitutional justice.

3. That, in addition, the district justice would have to have been satisfied in making the order that there were compelling reasons to give the infant into the custody of a person other than its parents.

In re J.H., an infant [1985] I.R. 375 considered.

4. That, where an allegation of sexual abuse had been made against the father alone, the district justice would have to have considered whether the mother could safeguard the infant.

5. That, there being evidence that the above requirements had been satisfied in the District Court, the district justice had been entitled to make the order under s. 24 and accordingly the infant was detained in accordance with law.

6. That, there being nothing in the Act of 1908 to require the meaning of "fit person"to be confined to natural persons, s. 11 of the Interpretation Act, 1937, applied and "person"accordingly included a body corporate.

7. That the health of an infant who had suffered sexual abuse was in danger and needed treatment and, accordingly, such a child fell within s. 66, sub-s. 2 of the Health Act, 1970, and a Health Board was, therefore, empowered by that section to take the child in care.

Attomey General v. Eastern Railway Co. (1880) 11 Ch. D. 449, 5 App. Cas. 473 considered.

Cases mentioned in this report:—

The State (D.C.) v. Midland Health Board (Unreported, High Court, Keane J., 31st July, 1986).

The State (Sheerin) v. Kennedy [1966] I.R. 379.

In re D. [1987] I.R. 449; [1988] I.L.R.M. 251.

In re J.H., an infant [1985] I.R. 375.

Attorney General v. Eastern Railway Company (1880) 11 Ch. D. 449; 5 App. Cas. 473.

Habeas Corpus.

By affidavits sworn the 15th June, 1987, the prosecutors sought and obtained from the High Court (Hamilton P.) orders directing the respondents to bring before the Court the body of D.D., an infant, and to justify her detention pursuant to Article 40, s. 4, sub-s. 2 of the Constitution of Ireland, 1937.

The infant had been detained by the respondents on foot of an order made by the District Court on the 18th November, 1986, pursuant to s. 24 of the Children Act, 1908. The grounds of that order had been that one of the prosecutors, the infant's father, had sexually abused the infant.

The facts and the relevant statutory provisions are summarised in the headnote and appear in detail in the judgment of Carroll J. post.

Article 40, s. 4, sub-s. 2 of the Constitution of Ireland, 1937, provides that:—

"Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made, shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody his is detained an opportunity of justifying the...