The Board of Management of Wilson's Hospital School v Enoch Burke

• Jurisdiction: Ireland
• Judge: Birmingham P.,Ms. Justice Máire Whelan,Mr. Justice Edwards,Mr Justice John Edwards
• Judgment Date: 07 March 2023
• Neutral Citation: [2023] IECA 52
• Docket Number: Appeal Number: [2022 No. 237]
• Court: Court of Appeal (Ireland)

Between

The Board of Management of Wilson's Hospital School

Respondent

and

Enoch Burke

Appellant

[2023] IECA 52

The President

Edwards J.

Whelan J.

Appeal Number: [2022 No. 237]

THE COURT OF APPEAL

CIVIL

Interlocutory injunctions – Balance of convenience – Constitutional rights – Appellant appealing against orders providing injunctive relief – Whether the approach of the respondent was in accordance with public policy

Facts: The High Court (Stack J), by order dated 30th August 2022, restrained the appellant, Mr Burke, from attending at the premises of Wilson’s Hospital School until after 7th September 2022 or further order, and further restrained him from attempting to teach any classes or any students at the school. The effect of the order of Barrett J dated 7th September 2022 was to provide interlocutory relief in broadly similar terms to the interim orders that had been in place. The appellant brought a motion seeking certain reliefs as set out in an ex parte docket. The order of Dignam J dated 12th September 2022 recited that counsel for the respondent, the Board of Management of the school, provided an undertaking that the disciplinary meeting scheduled for 14th September 2022 would not be proceeding, and that should any further disciplinary or investigation meeting be held, the respondent would give the appellant not less than three days’ notice of it in writing. The court made no order in relation to the reliefs sought at paragraphs 1, 3 and 4 of the ex parte docket. The matter was in court on 14th September 2022 before Roberts J, who made an order, having heard the application made by the appellant in respect of the reliefs sought at paragraph 2 of the ex parte docket, refusing that relief. The appellant appealed to the Court of Appeal against the order of Stack J dated 30th August 2022, the order of Barrett J dated 7th September 2022, the order of Dignam J dated 12th September 2022 and the order of Roberts J dated 14th September 2022. The appellant contended that at the core of the appeal was the constitutional right of citizens to freely profess and practice their religious beliefs. He contended that he had been subjected to a disciplinary process and stood suspended because he opposed what he described as an unlawful demand of the principal that he deny his Christian beliefs, and because he expressed his religious beliefs on “transgenderism”.

Held by Birmingham P that the attention the controversy had received meant there could be few people in the educational world in Ireland who would not be aware of the background to the suspension and very few who could be under the misapprehension that it related to other forms of grave misconduct. It seemed to him to be a relevant consideration that the appellant had given the clearest possible indication of having every intention of conducting himself in a similar manner into the future. It also seemed to Birmingham P that the position of the child at the centre of the controversy required consideration in the context of identifying where the balance of convenience lay. With parental support, the child indicated a desire to transition; in those circumstances, it seemed to Birmingham P that, given the attitude taken by the appellant, it was not possible to meet simultaneously the desires of the child and the parents, on the one hand, and the appellant’s concerns, on the other. Birmingham P was of the view that the wishes of the child and parents must prevail. Birmingham P held that the case was not about what the appellant had chosen to describe as “transgenderism”. It seemed to Birmingham P that the approach of the school was in accordance with wider public policy as articulated in legislation such as the Gender Recognition Act 2015.

Birmingham P held that the appeal against the decisions of Stack J and Barrett J must be dismissed. To the extent that issues in relation to the proceedings before Dignam J and Roberts J had been canvassed and had been the subject of comment or argument, Birmingham P was of the view that the criticisms had not been made out. In all of the circumstances, Birmingham P dismissed the appeal.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the President delivered on the 7 ^th day of March 2023 by Birmingham P.

Introduction

1 . The background to the matters that arise in this appeal received considerable public attention. However, at the outset, it is important to clarify the extent of the appeal, to confirm what is and what is not before the Court on this occasion. In this judgment, Mr. Enoch Burke, the appellant herein and the defendant in the High Court proceedings, shall be referred to as the “appellant”. The Board of Management of Wilson's Hospital School, the plaintiff in the High Court proceedings and the respondent herein, shall be referred to as the “respondent Board” or the “respondent”. The Notice of Appeal sets out the decisions sought to be appealed. These are:

At this stage, it is convenient to refer in more detail to what was contained in the orders the subject of the appeal.

• (i) an order of Stack J. dated 30 ^th August 2022;

• (ii) an order of Barrett J. dated 7 ^th September 2022;

• (iii) an order of Dignam J. dated 12 ^th September 2022, to the extent that the order of Dignam J. made no order as to reliefs that had been sought by the appellant at paragraphs 1, 3 and 4 of a motion dated 12 ^th September 2022; and,

• (iv) an order of Roberts J. dated 14 ^th September 2022, insofar as that order refused reliefs sought by the appellant at paragraph 2 of his motion dated 12 ^th September 2022.

2 . The order of Stack J. of Tuesday 30 ^th August 2022 restrained the appellant from attending at the premises of Wilson's Hospital School (hereinafter the “school”) until after Wednesday 7 ^th September 2022 or further order, and further restrained him from attempting to teach any classes or any students at the school. The order of Stack J. provided for interim relief. The application for interlocutory relief came before Barrett J. on 7 ^th September 2022, and while couched in slightly more elaborate terms, the effect of the order of Barrett J. was to provide interlocutory relief in broadly similar terms to the interim orders that had been in place. The order providing for the interlocutory injunction is drafted in the terms of the Notice of Motion which had been issued on behalf of the respondent Board. It provided for:

• (i) an interlocutory injunction restraining the appellant from attending at the premises of the school for the duration of his paid administrative leave;

• (ii) an interlocutory injunction restraining the appellant from attempting to teach any classes or any students at the school for the duration of his paid administrative leave;

• (iii) an interlocutory injunction restraining the appellant from interfering with the appointed substitute teacher's duties and teaching;

• (iv) an interlocutory injunction restraining the appellant from failing to comply with the directions of the respondent Board; and,

• (v) an interlocutory injunction restraining the appellant from trespassing on the property of the school.

3 . The matter was before Dignam J. on Monday 12 ^th September 2022, on foot of a motion brought by the appellant seeking certain reliefs as set out in an ex parte docket. The reliefs sought were:

The order of Dignam J. recites that counsel for the respondent provided an undertaking that the disciplinary meeting scheduled for Wednesday 14 ^th September 2022 would not be proceeding, and that should any further disciplinary or investigation meeting be held, the respondent Board would give the appellant not less than three days' notice of it in writing. The Court made no order in relation to the reliefs sought at paragraphs 1, 3 and 4 of the ex parte docket.

• (i) an injunction restraining the respondent Board, its servants or agents, from holding the disciplinary meeting at Mullingar Park Hotel, Co. Westmeath on Wednesday 14 ^th September 2022 or any other date;

• (ii) an injunction restraining the respondent Board, its servants or agents, from putting the appellant on paid administrative leave, or from continuing to put the appellant on paid administrative leave;

• (iii) an injunction restraining the respondent Board, its servants or agents, from the conduct of any disciplinary or investigation process in respect of the appellant; and,

• (iv) an injunction restraining the respondent Board, its servants or agents, from dismissing the appellant.

4 . The matter was in court again on Wednesday 14 ^th September 2022, on this occasion before Roberts J., who made an order, having heard the application made by the appellant in respect of the reliefs sought at paragraph 2 of the ex parte docket, refusing that relief.

Factual Background

5 . In order to provide context to what has transpired before this Court, it is necessary to refer in outline to the factual background.

6 . The appellant has been a teacher of German and History at the school. He started teaching there in 2018, and as of 2020, was on a permanent contract. On 9 ^th May 2022, the then principal of the school (hereinafter the “principal”) issued an email to staff, including the appellant, informing staff members that a student in the school would, with the support of the student's parents, be making a transition in their gender identity from the next day. The principal referred to the fact that, from then, the student would be known by a different name than had been the case heretofore, and that the pronoun “they” should be used, rather than the pronoun that had been used up to that point. The appellant took issue with the communication, and the following day, he emailed the principal as follows:

“Can you confirm to me that parents of students in the school have been informed that their children will be told that one of their classmates is to be referred to as ‘they’...