State (D. and D.) v Groarke

• Jurisdiction: Ireland
• Judgment Date: 01 January 1990
• Date: 01 January 1990
• Docket Number: [S.C. No. 343 and 369 of 1988]
• Court: Supreme Court

Supreme Court

Supreme Court

[S.C. No. 343 and 369 of 1988]

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

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

and

Margaret Groarke and The Midland Health Board

Cases mentioned in this report:—

Attorney General v. Great Eastern Railway Co. (1880) 5 A.C. 473; 49 L.J. Ch. 545; 42 L.T. 810; 44 J.P. 648; 28 W.R. 769.

Ashbury Railway Carriage & Iron Co. v. Riche (1875) L.R. 7 H.L. 653; 44 L.J. Ex. 185; 33 L.T. 450; 24 W.R. 794.

Hampshire County Council v. C. [1988] F.C.R. 133; (1988) 152 J.P.N. 206.

Re E. (A Minor) [1987] F.C.R. 169; [1987] 1 F.L.R. 269; (1987) 151 J.P.N. 590.

In re Frost, Infants [1947] I.R. 3; (1945) 82 I.L.T.R. 24.

Re G. (Minors) [1988] F.C.R. 81; [1987] 1 F.L.R. 310; (1987) 151 J.P.N. 702.

In re G.H.L. [1928] I.R. 543.

In re Haughey [1971] I.R. 217.

In re J.H. (Inf.) [1985] I.R. 375.

Re N. (Minors) [1987] F.C.R. 184; [1987] 1 F.L.R. 280; (1987) 151 J.P.N. 590.

In re Tilson, Infants [1951] I.R. 1; (1950) 86 I.L.T.R. 49.

Re W. (Minors) [1988] F.C.R. 69; [1987] 1 F.L.R. 297.

R. v. Secretary of State ex p. Al-Mehdawi [1989] 2 W.L.R. 603; [1989] 3 W.L.R. 1294; [1989] 1 All E.R. 777.

Saunders v. Mid-Western Health Board [1989] I.L.R.M. 229.

State (Holland) v. Kennedy [1977] I.R. 193.

State (Williams) v. Markey [1940] I.R. 421; (1939) 74 I.L.T.R. 237.

The State (D. and D.) v. Groarke [1988] I.R. 187.

Trimbole v. Governor of Mountjoy [1985] I.R. 550; [1985] I.L.R.M. 465.

W. v. Somers [1983] I.R. 122; [1983] I.L.R.M. 343.

Infant - Custody - Care proceedings - Power of District Court to remove child from custody of person in whose custody the child is and to commit to care of relative or fit person - Provision that religion of child and relative or fit person be considered - Whether provision mandatory or directory - Whether failure of order to refer to religion invalidated order - Power of District Court to order removal to place of safety of child in danger - Power to commit child to care of "relative or other fit person" - Whether District Court obliged before considering care of fit person to consider committal to care of relative - Whether Health Board had capacity to be a "fit person" - Children Act, 1908 (8 Edw. 7, c. 67), Parts I and II, ss. 23, 38 - Interpretation Act, 1937 (No. 38), s. 11 - Children (Amendment) Act, 1957 (No. 28), ss. 2 and 3 - Health Act, 1970 (No. 1), ss. 5, 6 and 66, sub-s. 2.

Judicial review - Natural justice - Fair procedures - Fit person order - Enquiry by District Court into fitness of parents - Allegations of serious abuse - Health Board adducing evidence of medical examination and medical opinion - Whether parents' solicitor entitled to summary of evidence - Whether District Court should have heard detailed evidence of medical examination before hearing evidence of opinion - Whether deficiencies in pre-trial procedures and trial invalidated order - Order containing incorrect and irrelevant recitals - Whether inclusion of erroneous and irrelevant recitals invalidated order - Children Act, 1908 (8 Edw. 7, c. 67), s. 58.

Statute - Interpretation - Child - Power of court to order removal of child of person committed for trial on charge of offence against child for specified period - Order automatically discharged on acquittal of accused - General power of District Court to order removal of child in danger to place of safety - Whether general power permitted District Court to make other than a temporary order - Whether in the absence of a prosecution of the parent within a reasonable time the child must be released - Children Act, 1908 (8 Edw. 7, c. 67), ss. 21, 24.

Appeal from the High Court.

On the 16th 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 High Court (Carroll J.) refused the application ([1988] I.R. 187).

The prosecutors appealed to the Supreme Court against the judgment and order of the High Court by notice of motion dated the 25th October, 1988. The facts of the case and the relevant statutory provisions have been summarised in the headnote and are set out in the judgments of Finlay C.J., infra.

The appeal was heard by the Supreme Court on the 11th, 12th and 13th July, 1989.

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 his 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 in like manner as if the person in whose care he was had been committed for trial for an offence under Part II of the Act.

The provisions of the Act of 1908 dealing with the welfare of a child who is in the custody of a person who has been committed for trial for an offence against the child under Part II of the Act are contained in s. 21 which provides, inter alia, that the court may, in respect of such a child make an order taking the child out of the custody or care of the person so committed for trial and committing it to the care of a relative or other fit person named by the court until he attains the age of 16 years or for any shorter period and if the person committed for trial shall be acquitted or if the charge against him is dismissed for want of prosecution the order placing the child in the custody of the relative or fit person is voided.

Section 23, sub-s. 1 of the Act of 1908 provides that in determining on the person to whose care the child shall be committed the court shall endeavour to ascertain the child's religious persuasion and shall, if possible, select a person of the same religious persuasion and such persuasion shall be specified in the order.

Section 38, sub-s. 1 of the Act of 1908 provides that for the purpose of Part II of the Act,"unless the context otherwise requires, the expression 'fit person' in relation to the care of any child or young person, 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. . ."

Section 11, para. (c) of the Interpretation Act, 1937, provides that the word "person", shall"unless the contrary intention appears, be construed as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual".

A Health Board is by virtue of s. 5 of the Health Act, 1970, "a body corporate with perpetual succession". Section 6 of the Act of 1970 specifies the functions to be performed by a Health Board including functions previously provided by the local authority under enactments listed in s. 6, sub-s. 2 (g). Part II of the Act of 1908, which contains the provisions relating to fit persons and the committal to their custody of a child, is not so listed.

The application of the respondents for a fit person order was first before the District Court on the 4th November, 1986, pursuant to a summons issued on the information of the first respondent which contained general allegations of ill-treatment but no details of sexual abuse. The matter was adjourned for a week on the prosecutors' application for the purpose of obtaining medical reports. When the matter came before the court again on the 18th November the lawyer for the prosecutors was given no report on the physiological examination of the child and when he asked for the video recording of the interview in which the expert medical witness questioned the child by means of anatomically correct dolls he was told it was not available. He was given a copy of one doctor's report on loan prior to the hearing. He did not seek a further adjournment or submit that the District Justice should direct the availability of the video. A fit person order was made pursuant to s. 24 of the Act of 1908.

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 child by way of proceedings in the High Court under Article 40, s. 4, sub-s. 2 of the Constitution of Ireland claiming that the order of the District Court was invalid. The High Court (Carroll J.) refused the relief sought ([1988] I.R. 187).

The prosecutors appealed to the Supreme Court on the ground that the pre-trial procedure and material adduced in evidence by the respondents were insufficient to constitute fair procedures and a fair trial.

The prosecutors also submitted that the phrase "in like manner" in s. 24 of the Act of 1908 envisaged that, where a child was brought before a court where a warrant had not been issued in respect of an offence, the court could only make a temporary order and that the child must be released after such reasonable time as would permit the authorities to consider the bringing of a charge as set out in s. 21 of the Act of 1908.

The order of the District Court failed to specify the religious persuasion of the child as set out in s. 23 of the Act of 1908 and it included recitals which were appropriate only to orders pursuant to s. 58 of the Act of 1908. It contained no recital in relation to whether the court...