T.D. and Others v Minister for Education

 
FREE EXCERPT

[2001] IESC 101

THE SUPREME COURT

KEANE C.J.

DENHAM J.

MURPHY J.

MURRAY J.

HARDIMAN J.

203/00
D (T) & ORS v. MINISTER FOR EDUCATION & ORS

BETWEEN

T.D. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND M.D.)
APPLICANT

AND

THE MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL, THE EASTERN HEALTH BOARD AND BY ORDER OF THE MINISTER FOR HEALTH AND CHILDREN
RESPONDENTS

BETWEEN

D.B. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND S.B.)
APPLICANT

AND

MINISTER FOR JUSTICE, MINISTER FOR HEALTH, MINISTER OF EDUCATION, IRELAND, THE ATTORNEY GENERAL AND THE EASTERN HEALTH BOARD
RESPONDENTS

BETWEEN

D (T) & ORS v. MINISTER FOR EDUCATION & ORS
M.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M.B.)
APPLICANT

AND

MINISTER FOR EDUCATION, IRELAND, THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD
RESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND K.O'D.)
APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

BETWEEN

G.D. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND A.D.)
APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
D (T) & ORS v. MINISTER FOR EDUCATION & ORS

BETWEEN

P.H. (A MINOR SUING BY HIS GUARDIAN AD LITEM AND NEXT FRIEND R.F.)
APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

BETWEEN

B.J. (A MINOR SUING BY HIS GUARDIAN AD LITEM R.F.)
APPLICANT

AND

EASTERN HEALTH BOARD, MINISTER FOR EDUCATION AND SCIENCE, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

BETWEEN

T.L. (A MINOR SUING BY HER GUARDIAN AD LITEM C.O'D.)
APPLICANT

AND

D (T) & ORS v. MINISTER FOR EDUCATION & ORS
EASTERN HEALTH BOARD, MINISTER FOR EDUCATION, MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

BETWEEN

S.T. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND D.T.)
APPLICANT

AND

MINISTER FOR EDUCATION AND SCIENCE, IRELAND, THE ATTORNEY GENERAL AND EASTERN HEALTH BOARD
RESPONDENTS

Citations:

CHILDREN ACT 1908 S58(4)

B (D) V MIN FOR JUSTICE 1999 1 IR 29

M (F) V MIN FOR EDUCATION 1995 1 IR 409

O'CONNOR THE IRISH JUSTICE OF THE PEACE VOL 2 162

CONSTITUTION ART 40.3

CONSTITUTION ART 42

CHILDREN ACT 1908 S62(1)

CHILDREN ACT 1908 S58(2)

KING V AG 1981 IR 233

MADIGAN V AG 1986 ILRM 123

MHIC MHATHUNA V AG 1989 IR 504

MCMENAMIN V IRELAND 1996 3 IR 100

FEENEY V MIN FOR FINANCE 1986 ILRM 164

RIORDAN V AN TAOISEACH 2000 4 IR 542

O'REILLY V LIMERICK CORPORATION 1989 ILRM 181

REDLAND BRICKS LTD V MORRIS 1970 AC 652

SHARPE V HARRISON 1922 1 CH 502

RYAN V MUTUAL TONTINE ASSOCIATION 1893 1 CH 116

SOCIETY FOR THE PROTECTION OF THE UNBORN CHILD (IRL) LTD (SPUC) V COOGAN 1989 IR 734

BOLAND V AN TAOISEACH 1974 IR 338

CROTTY V AN TAOISEACH 1987 IR 713

MCKENNA V AN TAOISEACH (NO 2) 1995 2 IR 10

QUINN, STATE V RYAN 1965 IR 106

BROWN V BOARD OF EDUCATION 347 US 483

BROWN V BOARD OF EDUCATION (NO 2) 349 US 294

BYRNE V IRELAND 1972 IR 241

CONSTITUTION ART 40.3.1

RYAN V AG 1965 IR 294

CONSTITUTION ART 42.1

CONSTITUTION ART 42.5

G V BORD UCHTALA 1980 IR 59

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

CONSTITUTION ART 40

O'T (I) V B 1998 2 IR 321

MCCARTHY OBSERVATIONS ON THE PROTECTION OF FUNDAMENTAL RIGHTS IN THE IRISH CONSTITUTION, CONSTITUTIONAL ADJUDICATION IN EUROPEAN COMMUNITY & NATIONAL LAW 1992 179–182

HOGAN UNENUMERATED PERSONAL RIGHTS: RYANS CASE REEVALUATED 1990–1992 IJ 95

CAHILL V SUTTON 1980 IR 269

O'DONOVAN V AG 1961 IR 114

BUCKLEY V AG 1948 IR 3

CONSTITUTION ART 6

CONSTITUTION ART 28.2

CONSTITUTION ART 17.2

D (D) V EASTERN HEALTH BOARD UNREP COSTELLO 3.5.1995 1995/7/1981

SINNOTT V MIN FOR EDUCATION UNREP SUPREME 12.7.2001

CONSTITUTION ART 6.1

CONSTITUTION ART6.2

CONSTITUTION ART 15.2.1

MURPHY V DUBLIN CORPORATION 1972 IR 215

PIGS MARKETING BOARD V DONNELLY LTD 1939 IR 413

BUCKLEY (SINN FEIN) V AG 1950 IR 67

CONSTITUTION ART 34.1

EAST DONEGAL CO-OP V AG 1970 IR 317

L(G) V MIN FOR JUSTICE UNREP GEOGHEGAN 24.3.1995 1995/3/973

T (D) V MIN FOR JUSTICE UNREP GEOGHEGAN 24.3.1995 1995/5/1661

CONSTITUTION ART 34.3.2

DPP, PEOPLE V O'SHEA 1982 IR 384

UN DECLARATION OF HUMAN RIGHTS

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

UNITED MIZRAHI BANK V MIGDOL VILLAGE 1995 49 (4) PD 221

C, STATE V FRAWLEY 1976 IR 365

RICHARDSON, STATE V GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

CONSTITUTION OF INDIA PART IV

CONSTITUTION OF INDIA ART 37

QUINN RETHINKING THE NATURE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE IRISH LEGAL ORDER 2001 FSR 49

N (F) V MIN FOR EDUCATION 1995 1 IR 409

MCGEE V AG 1974 IR 284

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

O'DONOGHUE V MIN FOR HEALTH 1996 2 IR 20

CONSTITUTION ART 34.4.3

G (D) V EASTERN HEALTH BOARD 1997 3 IR 511

CONSTITUTION ART 28.4.1

CONSTITUTION ART 15

LANDERS V AG ILTR 1976

CONSTITUTION ART 40.1

CONSTITUTION ART 42.3.2

CONSTITUTION ART 42.3

CHILD CARE ACT 1991

NORTH WESTERN HEALTH BOARD V W (H) UNREP SUPREME 8/11/2001

BERGER GOVERNMENT BY JUDICIARY 1977

MONTESQUIEU DE L'ESPRIT DES LOIX 1748

CONSTITUTION OF THE STATE OF VIRGINIA 1776

BOWERS V HARDWICKE 478 US 186

CONSTITUTION ART 35.2

PEOPLE V SHAW 1982 IR 1

HOLLAND, STATE V KENNEDY 1977 IR 193

Synopsis:

CHILDREN

Constitution

Provision of residential facilities - Judicial Review - Provision of residential facilities - Mandamus - Health and Safety - Separation of powers - Role of health boards -Whether State under constitutional obligation to provide suitable arrangements for treatment of children - Whether courts entitled to intervene - Whether court order in breach of separation of powers - Children Act, 1908. (203/2000 - Supreme Court - 17/12/2001) - [2001] 4 IR 259

D (T) v Minister for Education

The case concerned the issue of whether the State was under a constitutional obligation to provide for the accommodation needs of children with particular problems. In the High Court Kelly J held that for many years, religious orders provided facilities to deal with such children but, with the decline of vocations, the burden of providing such places shifted to the State. The problem had not been addressed by the legislature or executive. The court ordered that it should be kept abreast of developments by affidavits giving details of the outcome of the forthcoming senior managers’ group meetings, the number of high-support places provided and required by Health Boards nationally, steps being taken to provide appropriate premises, staff, facilities and funding, the estimated time required for the provision of such facilities, any overall plan to deal with the problem and any other relevant matter. The respondents appealed against the judgment.

Held by the Supreme Court (Keane C.J. and Murphy J delivering judgments; Denham J, Murray J and Hardiman J agreeing )in allowing the appeal and discharging the injunction granted by the High Court. Keane C.J. held that because of the absence of available places in sufficiently secure units with appropriate facilities for minors with behavioural problems, it was found necessary in some cases to accommodate them in detention centres intended for the reception of children convicted of criminal charges, a situation which had given rise to understandable concern. In the present case, it was clear that, having regard to their respective ages, some of the applicants would derive no conceivable benefit from the order granted by the High Court. However the applicants had undoubtedly been affected by the failure on the part of the state agencies to meet their particular needs and that, of itself, would afford them locus standi. The Ministers in determining that particular resources should be allocated to the building and staffing of the units which were now the subject of the order were exercising the executive power of the State on behalf of the Government as a whole. The monies required to provide and staff the units could only be made available to the Ministers by Dáil Éireann. The issue in this case was as to whether the court was also entitled to make an order specifying in detail the manner in which they were to carry out their functions so as to remedy the breach. The granting of an order of this nature was inconsistent with the distribution of powers between the legislative, executive and judicial arms of Government mandated by the Constitution. It followed that, as a matter of principle, it should not have been granted by the trial judge. Murphy J agreed with the Chief Justice holding that the absence of any express reference to accommodation, medical treatment or social welfare of any description as a constitutional right in the Constitution as enacted was a matter of significance. The failure to correct that omission in any of the twenty-four referenda which have taken place since then would suggest a conscious decision to withhold from rights which were now...

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