Z v Y, X, an Tard Chlaraitheoir, Ireland and Attorney General
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 23 May 2008 |
| Neutral Citation | [2008] IEHC 472 |
| Court | High Court |
| Date | 23 May 2008 |
| Docket Number | No. 3876P/2004 |
AND
[2008] IEHC 472
THE HIGH COURT
CONSTITUTIONAL LAW
Children
Paternity - Registration of birth of minor - Claim of paternity - Application for entry of name on registration details of birth - Inquiry into correctness of registration details - Proceedings by registered parents to restrain inquiry - Whether jurisdiction to hear proceedings without child being put on notice - Refusal of registered parents to inform child - Whether jurisdiction to direct someone other than registered parents to inform child - Constitutional right of claimant to have proceedings determined within reasonable timeframe - Constitutional right of child to be informed - Fair procedures - Entitlement of child to have views taken into account - Right personal to child - Primary right and duty of registered parents to ensure constitutional right of child protected - Entitlement of State through courts to step in where registered parents fail in duty - Consideration of expert evidence in relation to child - FN v CO (Guardianship) [2004] 4 IR 431; Re Article 26 and the Adoption (No 2) Bill 1987 [1989] IR 656; North Western Health Board v HW [2001] 3 IR 622; S v S [1983] 1 IR 68; Northern Area Health Board v An Bord Uchtála [2002] 4 IR 252 and N v Health Service Executive [2006] IEHC 278, [2006] IESC 60, [2006] 4 IR 374 considered - Civil Registration Act 2004 (No 3), s 22 - Constitution of Ireland 1937, Arts 40.3 and 42.5 - Declaration that proceedings not proceed without notice to child and that jurisdiction to direct somebody other than parents to inform child (2004/3876P - Laffoy J - 23/5/2008) [2008] IEHC 472
Z v Y
CIVIL REGISTRATION ACT 2004 S22(3)
CONSTITUTION ART 34
CONSTITUTION ART 40.3.1
CONSTITUTION ART 40.3.2
CONSTITUTION ART 41
CIVIL REGISTRATION ACT 2004 S22
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8
GUARDIANSHIP OF INFANTS ACT 1964 S11
CONSTITUTION ART 42.5
BIRTH & DEATH REGISTRATION (IRELAND) ACT 1880 S7(A)
STATUS OF CHILDREN ACT 1987 S49
CIVIL REGISTRATION ACT 2004 S23
CIVIL REGISTRATION ACT 2004 S63
CIVIL REGISTRATION ACT 2004 S65
CONSTITUTION ART 40.3
N (F) v O (C)(GUARDIANSHIP) 2004 4 IR 431
NORTH WESTERN HEALTH BOARD v W (H) 2001 3 IR 622
CONSTITUTION ART 42
CONSTITUTION ART 40
ADOPTION (NO 2) BILL 1987, RE 1989 IR 656
S v S 1983 IR 68 1984 ILRM 66 1983/4/1063
RUSSELL v RUSSELL 1924 AC 687
CONSTITUTION ART 50
NORTHERN AREA HEALTH BOARD & H (W) & H (P) v BORD UCHTALA & R (P) 2002 4 IR 252 2003 1 ILRM 481 2002/21/5323
N (E) & N (ML) v HEALTH SERVICE EXECUTIVE & ORS 2006 4 IR 374
These proceedings (the 2004 proceedings) concern the registration of the birth of a minor to whom I will refer by the fictitious name, Jane. The plaintiff claims to be the biological father of Jane. The first and second defendants are married to each other. Jane was born to the first defendant during the marriage. The first and second defendants, whom I will refer to collectively as "the defendants", are named as Jane's mother and father on her birth certificate. I will refer to the third defendant as "the Registrar" and the fourth and firth defendants collectively as "the State parties."
In the 2004 proceedings the plaintiff claims,inter alia, the following reliefs:
(1) a declaration that s. 22(3) of the Civil Registration Act2004 (the Act of 2004) is invalid having regard to the provisions of Articles 34, 40.3.1, 40.3.2 and 41 of the Constitution, coupled with a declaration that the State parties are obliged to put in place (if necessary, through legislation) a statutory procedure which will enable the plaintiff's paternity of Jane to be publicly acknowledged and registered;
(2) a declaration that s. 22 is incompatible with Articles 6 and 8 of the European Convention on Human Rights, assuming that the reference to the Constitution in the prayer in the statement of claim is an error;
(3) a declaration that the plaintiff is the father of Jane;
(4) a declaration that the plaintiff is entitled to have his paternity entered on Jane's birth certificate;
(5) an order quashing the registration of Jane's birth contained in the existing certificate; and
(6) an order directing the Registrar to re-register the birth of Jane so as to reflect the fact that the plaintiff is her father.
There are other related proceedings, which are entitled 'In the Matter of Section 11 of the Guardianship of Infants Act1964' and are between Y and X (the first and second defendants in the 2004 proceedings), as plaintiffs, and the Registrar and Z (the plaintiff in the 2004 proceedings), as defendants (the 2006 proceedings) and which are linked to the 2004 proceedings, pending in this Court.
By order made on 22nd January, 2008 it was ordered pursuant to Order 25 of the Rules of the Superior Courts, 1986 that the following preliminary issue be set down for hearing, namely:
(1) Does the court have the jurisdiction to proceed with the hearing of the 2004 proceedings and the 2006 proceedings or any part of them without Jane being put on notice of the existence and nature of the proceedings whether for the purposes of an application that she be joined as a party to the proceedings or at all?
(2) If the answer to question (1) is no, does the court have jurisdiction (whether by virtue of Article 42.5 of the Constitution or otherwise) to direct that somebody other than the parents of Jane put Jane on notice of the said proceedings where her parents have not informed her?
(3) In the event that the answer to question (2) is yes, what are the appropriate criteria and/or tests to be applied by the court in deciding whether to exercise its discretion to make an order directing that Jane be so informed by somebody other than her parents?
(4) In the event that the answer to question (1) is yes, what are the appropriate criteria and/or tests to be applied by the court in deciding whether to exercise its discretion to proceed with the hearing of the said application without Jane being informed?
It was further ordered that the determination of those questions be had on an agreed set of facts to be furnished to the court by counsel for the parties.
This judgment is concerned with the determination of those questions.
The facts as set out on the agreed statement of facts to which I have not already adverted are as follows:
(a) Jane's age at the time of the determination of the preliminary issue is fifteen years and ten months.
(b) The plaintiff applied to the Registrar to have his name entered as her father on the registration details of her birth. The Registrar, relying on the provisions of s. 7A of the Birth and Death Registration (Ireland) Act 1880, as amended by s. 49 of the Status of Children Act1987 (the Act of 1987), refused to re-register the birth of Jane to show the plaintiff was her father in circumstances where the second defendant had previously been registered as her father.
(c) On 30th March, 2004 the plaintiff instituted the 2004 proceedings in this Court seeking, inter alia, a declaration that s. 7A was invalid having regard to the provisions of the Constitution.
d) Prior to that case coming on for hearing, the Act of 2004 was enacted into law and commenced on 5th December, 2005. Section 7A was repealed and re-enacted in s. 23 of the Act of 2004 and some new powers to correct errors of fact were conferred on the Registrar. On 26th May, 2006, the plaintiff requested the Registrar to alter the Register of Births to reflect the fact that he is the father of Jane. On or about 7th June, 2006, the Registrar, pursuant to ss. 63 and 65 of the Act of 2004, decided to conduct an inquiry to ascertain whether the particulars relating to the entry of Jane's birth in the Register of Births are correct and complete.
(e) The defendants then issued the 2006 proceedings on 11th October, 2006 in which they seek, inter alia, declarations restraining the Registrar from taking any steps, including the carrying out of an inquiry under the Act of 2004, for the purposes of altering the Register of Births.
(f) The plaintiff, by order of the court made on 7th February, 2007, was joined as a party in the 2006 proceedings and was further given liberty to amend the 2004 proceedings so as to challenge the constitutionality of the reenacted provisions of the Act of 2004. It was further ordered that both sets of proceedings be linked and that the 2004 proceedings should be heard first.
(g) The doctor who carried out paternity tests in respect of Jane in September, 1996, Dr. T.J. Walsh, died shortly before the original scheduled hearing of the main action in March, 2006.
(h) The plaintiff sought directions from the High Court as to whether he was entitled to rely upon Dr. Walsh's report in the matter and whether such evidence is admissible. The court was asked, in the alternative, to direct, if necessary, fresh blood tests pursuant to the provisions of the Act of 1987 or the court's inherent jurisdiction.
(i) Dr. Gerard Byrne, Consultant Child Psychiatrist, advised the court on 24th April, 2007 that Jane be told about the existence of these proceedings and that she be told by the defendants. The proceedings have been adjourned from time to time to enable this to be done. They have not done so to date.
The directions referred to in para. (h) above were sought by notice of motion dated 5th April, 2007. That motion stands adjourned pending the outcome of the trial of the preliminary issue.
At the hearing of the preliminary issue there was some controversy in relation to the contents of para (i) above. Counsel for the State...
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