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Herron v. Ireland [1999] IESC 84 (3rd December, 1999)
THE
SUPREME COURT
HAMILTON
C.J.
BARRINGTON
J.
LYNCH
J.
45
& 53/99
BETWEEN:
PATRICIA
HERRON
Plaintiff/Appellant
.v.
IRELAND,
THE ATTORNEY GENERAL, THE MINISTER FOR JUSTICE, THE MINISTER FOR EDUCATION, THE
MINISTER FOR HEALTH
Defendants/Respondents
Judgment
delivered on the 3rd day of December 1999 by Hamilton C.J. [Nem. Diss.]
1. This
is an appeal by both the Applicant Patricia Herron (hereinafter referred to as
the Applicant) and the Respondents against portions of the judgment of the High
Court (Quince J.) delivered on the 22nd day of February, 1999 and the Order
made in pursuance thereof on the same date.
________________________
page break ________________________
(2)
2. As
stated by the learned trial judge in the course of his judgment:-
“The
proceedings herein which have a lengthy and complicated history were commenced
by the Applicant in October, 1993 and comprised an application for relief by
way of Mandamus requiring the Defendants (Respondents herein) to-provide secure
residential placement for psychological assessment, diagnosis and treatment of
her son, Niall Herron, who was then an infant aged 12 years.
The
matter came before the learned trial judge for hearing of three motions, one
issued on behalf of the Respondents and two on behalf of the Applicant.
The
motion, on behalf of the Respondents was issued on the 30th day of November,
1998 and sought directions:
(a) as
to the continued application of the Order made in the proceedings by the
Supreme Court on the 6th day of December, 1993;
(b) as
to any other matters which this Honourable Court shall deem appropriate.
By
notice of motion dated the 30th day of November, 1988, the Applicant sought,
inter alia,
________________________
page break ________________________
(3)
1.
an
order re-entering these proceedings;
2. an
order deeming the proceedings to be extant by virtue of Section 6 of the Age of
Majority Act of 1985;
3. an
order instructing the Commissioner of the Garda Síochána, his
servants or agents, and in particular the Chief Superintendent of Cork City and
the Superintendent of Gurranabraher Garda Station, Cork, and their servants and
agents to apprehend Niall Matthews (hereinafter referred to as the Child),
whose last known address was Clonard, Strawberry Villas, Lee Road, Cork and to
take him before Mr. Justice Barron sitting as the High Court as soon as
practicable, in accordance with the Order of the Supreme Court in the above
entitled proceedings dated the 6th day of December 1993.
The
third motion (the second issued by the Applicant) was issued on the 7th day of
December, 1998 and sought an order for the attachment and committal to prison
of the persons named therein, for contempt of Court.
As
appears from the affidavit of the Applicant upon which this application was
grounded and sworn on the 7th December, 1998 the Applicant alleges that they
deliberately breached the order of the Supreme Court dated the 6th day of
December, 1993.
________________________
page break ________________________
(4)
As
the Order of the Supreme Court made on the 6th day of December, 1993 provided
the basis for the aforesaid three Motions, it is desirable that the terms of
the said Order be set out in full.
By
the said Order it was ordered that:-
(1) if
the minor Niall Herron is returned to the State he is to be brought by the
Garda Síochána before the High Court (Mr. Justice Barron) sitting
at Dublin as soon as practicable;
(2) pending
his being brought before the High Court as aforesaid the said minor may be
lodged at St. Michael ‘s House - the Applicant through her Counsel so
consenting;
(3) the
question of what (f any) assessment of the said Niall Herron is to be carried
out in St. Michael ‘s House or elsewhere is to be determined by the High
Court;
(4) all
further Orders concerning the welfare and place of residence of the said Niall
Herron are matters for the High Court;
(5) the
Court recommends that legal representation for the said Niall Herron in the
High Court be provided in accordance with the Attorney General ‘s Scheme
- a Solicitor for that purpose to be nominated by the President of the
Incorporated Law Society and
________________________
page break ________________________
(5)
such
Solicitor to have authority to engage the services of one Senior and one junior
Counsel;
(6) the
Court requests that the Attorney General through the Central Authority inform
the appropriate authorities in England including the Court of Appeal of the
terms of this Order;
(7) the
foregoing arrangements are made to meet the immediate situation in the event of
the return of the said Niall Herron under Order of the Courts having
jurisdiction in the United Kingdom to this jurisdiction and without prejudice
to the rights and duties of the Southern Health Board in relation to the care
of the said Niall Herron.
In
the course of his judgment the Chief Justice, incorporating the terms of the
said Order stated that:-
“In
making this Order, the Court emphasises that the arrangements it is making
which are intended to meet the immediate situation if the boy is returned under
the Order of the English courts to this country are made completely without
prejudice to the rights or duties of the Southern Health Board in relation to
the care of this child.”
________________________
page break ________________________
(6)
3. He
then went on to say that:-
“I
would ask the Attorney General through the Central Authority, which is the
person involved for the Hague Convention to inform the appropriate authorities
in England including the Court of
Appeal
of the terms of the Order that has been made. What I am anxious to do is to
ensure that the Court of Appeal in England should be aware
(a) that
the child has got a place where, with his mother ‘s consent he can be
sent on arrival here, and
(b) that
he is going to be legally represented.”
4. At
the time of the making of the said order the child was in England and the
subject of proceedings there.
5. It
would appear from the judgment of Butler-Sloss L.J. (1994) 2 F.L.R. 126 that on
the 19th October, 1993, the child’s father took the child to London in
breach of the Applicant’s rights to custody and consequently in breach of
the Convention on the Civil Aspects of International Child Abduction (the Hague
Convention) and that the Applicant issued proceedings in England under the
Hague Convention procedure.
________________________
page break ________________________
(7)
6. These
proceedings had not been finally determined at the time of the making of the
Order of the Supreme Court relied on herein but the Court was fully aware of
the existence of such proceedings and had regard to such proceedings.
7. It
is not necessary to set out in detail the course of the proceedings in England.
Suffice to say that the Court of Appeal refused the Applicant leave to appeal,
allowed the appeal by the child: dismissed the Applicant’s application
under the Hague Convention: made the child a Ward of Court subject to the issue
of wardship proceedings and gave various consequential directions.
8. The
reasons for such decisions are set forth in the judgments of Butler-Sloss, L.J.
Staughton L.J. and Hoffman L.J. which were delivered on the 21st December, 1993
and are contained in
Re
M (a Minor)
(1994) 2 F.L.R. pages 127 to 140 inclusive.
9. At
no stage did the situation, envisaged by the Supreme Court when making the said
order
viz,
that
the child would be returned to this jurisdiction under the Order of the English
Courts, arise.
________________________
page break ________________________
(8)
10. It
appears however from the affidavit of Sergeant Cornelius Hunter, sworn herein
on the 30th November, 1998 and upon which the Respondents notice of motion was
grounded that:-
1. On
Saturday, 7th November, 1998 the child (now 18 years of age) called to the
Gurranabraher Garda Station and informed him that he had recently returned from
England.
2. Sergeant
Hunter informed him of the terms of the Supreme Court Order.
3. Sgt.
Hunter indicated to the child that he would contact the Chief State Solicitor
in order to acquaint himself with the position to determine whether or not he
was required to execute the said Order with a view to bringing the child before
the High Court.
4. Having
discussed the matter with the Chief State Solicitor ‘s office and having
regard to the known view of the Plaintiff that the Gardaí were required
to act on foot of the said Order, it was decided to seek the directions of the
High Court with regard thereto.
11. The
aforesaid three motions were heard by Quirke J. and on the 22nd day of
February, 1999 he ordered that:-
________________________
page break ________________________
(9)
“1. that
these proceedings be re-entered and be listed before Mr. Justice Kelly on
Friday the 12th day of March 1999 that the costs of the Applicant ‘s said
Motion to re-enter be reserved and that the re-entry of these proceedings be
stayed for a period of]4 days from the date hereof and in the event of the
Respondents ‘ serving Notice of Appeal within that period and duly
lodging same the stay to continue until after the final determination of such
appeal
2. that
having regard to the re-entering of these proceedings the President of the Law
Society of Ireland do nominate a solicitor to act on behalf of Niall Herron
(also known as Niall Matthews) and that the solicitor so nominated do serve the
said Niall Herron with Notice of the re-entry of these proceedings before Mr.
Justice Kelly and that the costs of the Respondents’ said Motion for
directions be reserved
3. that
the Applicant ‘s said Motion for attachment and committal be and the same
is hereby dismissed that the Applicant do pay to the Respondents the costs of
said Motion when taxed and ascertained and that execution on foot of said Order
for costs be stayed for a period of 14 days from the date hereof and in the
event of the Applicant serving Notice of Appeal against said dismissal within
________________________
page break ________________________
(10)
that
period and duly lodging same the stay to continue until after the final
determination of such appeal.”
12. Though
the learned trial judge had made an order re-entering the proceedings the
Applicant has appealed to this Court against the refusal of the learned trial
judge to make an order directing the apprehension of the child and his
production before the High Court in accordance with the terms of the Supreme
Court Order and against the dismissal of the Applicant’s motion seeking
attachment and committal for contempt of court of certain named parties and the
award of the costs of such motion to the Respondents.
13. The
Respondents have appealed that portion of the Order made by the learned High
Court Judge which ordered that
(a) the
herein proceedings be re-entered before the High Court;
(b) pursuant
to the Order of this Honourable Court dated the 6th day of December, 1993 legal
representation be provided for the child.
Applicant’s
Appeal
14. Two
issues arise on the Applicant’s appeal, viz.
1. Whether
the trial judge, having regard to the terms of the Order of this Court made on
the 6th day of December, 1993 erred in law in
________________________
page break ________________________
(11)
failing
to direct that the child be brought by the Garda Síochána before
the High Court.
2.
Whether
the trial judge erred in law in dismissing the Motion brought by the Applicant
that certain named individuals be attached and committed to prison for alleged
contempt of court.
15. The
answer to the first issue depends on the interpretation of the terms of the
said order having regard to the circumstances in which it was made.
16. The
provisions of the Order contained at Par. 7 thereof make the position quite
clear.
17. This
paragraph provides that:-
“The
foregoing arrangements are made to meet the immediate situation in the event of
the return of the said Niall Herron under the Order of the Courts having
jurisdiction in the United Kingdom to this jurisdiction...”
18. The
Court emphasised this fact when the Chief Justice stated:-
________________________
page break ________________________
(12)
“In
making this Order, the Court emphasises that the arrangements it is making
which are intended to meet the immediate situation f the boy is returned under
the Order of the English Courts to this country are made completely without
prejudice to the rights or duties of the Southern Health Board in relation to
the care of the child.”
19. The
contingency envisaged in the Order,
viz,
the
return of the child under Orders of the Courts having jurisdiction in the
United Kingdom never arose.
20. Consequently,
I am satisfied that the Order of the Supreme Court made on the 6th day of
December, 1993 never became enforceable and is certainly not enforceable in the
changed circumstances of six years later.
21. I
would dismiss the Applicant’s appeal on this ground.
22. With
regard to the Applicant’s contempt motion the learned trial judge, in
dismissing same stated:-
“In
so far as the Applicant has herein sought the attachment and committal to
prison of certain named persons for contempt of
________________________
page break ________________________
(13)
court,
I regard her application as scandalous, vexatious and possibly mischievous not
one shred of evidence has been adduced on behalf of the Applicant which would
suggest that the named persons concerned acted in anything other than an
exemplary manner in discharge of their various duties.”
23. I
agree with the views of the learned trial judge and have no hesitation in
dismissing her appeal on this ground also.
Respondent’s
Appeal
24. The
Respondents have appealed that portion of the Order of the High Court which
directed that the proceedings herein be re-entered before the High Court and
that legal representation be provided for the child.
25. The
gravimen of the Respondent’s appeal herein is against that portion of the
learned trial judge’s judgment which treated the application made herein
by the Applicant as an application made pursuant to the provisions of Section
11 of the Guardianship of Infants Act, 1964.
26. In
the course of his judgment he stated that:-
________________________
page break ________________________
(14)
“The
Applicant comes within the definition of a ‘guardian of an infant’
pursuant to the provisions of the 1964 Act and it cannot reasonably be
suggested that the relief which she has sought herein does not comprise an
application to this Court ‘...for its direction on any question affecting
the welfare of the infant ... since it comprises an application to require the
Respondents to provide residential placement and psychological assessment of
Niall Herron’.
Although
Section 11 of the 1964 Act was intended primarily to deal with questions
relating to custody, access and maintenance of children (this is clear from the
provisions of sub-section (2) thereof) I do not believe that the jurisdiction
of this Court has been confined to such matters having regard to the provision
in sub-section (1) thereof to the intent that the Court may ‘... make
such Order as it thinks proper ... ‘in respect of’... any question
affecting the welfare of the infant ....’
27. Accordingly,
since an application was made by the Applicant who was then a guardian of an
infant on a question affecting the welfare of that infant, it follows that
‘... reference to an infant ... ‘shall include a reference to a
child who ‘... has attained the age of 18 years and is suffering from
mental or
________________________
page break ________________________
(15)
physical
disability to such extent that it is not reasonably possible for him to
maintain himself fully’.
‘2.
(1) Where a person has not attained the age of 21 years prior to the
commencement of
this Act he shall, subject to
Section 4, attain full age -
(a) on
such commencement the has attained the age of 18 years or is or has been
married ....
(the
learned trial judge appears to have referred to
Section 2(l)(a) when it would
appear that it would have been more accurate to refer to (b) which provides that
“After
such commencement when he attains the age of]8 years or, in case he marries
before attaining that age, upon his marriage.”)
(4)
(a) This section does not affect the construction of any reference to the age
of 21 years ... in any statutory provision to which this sub-section applies
(b) This
sub-section applies to:
________________________
page break ________________________
(16)
to
be made for maintenance or support of children up to the age of 2l years.
Since
sub-section (2)(b) of
Section 11 of the 1964 Act empowers the Court to
‘order the father or mother to pay towards the maintenance of the infant
such weekly or other periodical sum as, having regard to the means of the
father or mother, the Court considers reasonable’ and since an
‘infant’ is defined within the 1964 Act as a person under
twenty-one years of age’ it follows that
Section 11 is a ‘...
provision of the ...
Guardianship of Infants Act, 1964 ... that provides for
payments to be made for maintenance or support of children up to the age of 21
years.
In
consequence,
Section 2 of the
Age of Majority Act, 1985 does not affect the
construction of the word ‘infant’ including the reference to the
age of twenty-one years which is contained in the definition of the word
‘infant’ in
Section 2 of the 1964 Act.
It
follows from the foregoing that this Court has jurisdiction to deal with the
matters which are in issue in the proceedings herein notwithstanding the fact
that Niall Herron is now more than 18 years old.”
________________________
page break ________________________
(17)
28. It
is submitted on behalf of the Respondents that the reasoning of the learned
trial judge as contained in the aforesaid passage is mistaken.
29. In
addition it is submitted that the learned trial judge erred in law in holding
that the instant case could be regarded as an application pursuant to the
provisions of Section 11 of the said Act of 1964 because the proceedings are
judicial review proceedings and cannot be transformed into such an application.
30. The
proceedings herein were originated by an application made to the High Court
(Barron J.) on the 5th day of October 1993 for liberty to seek by way of
judicial review
“1(i)
An Interim Order of Mandamus, requiring the Defendants to provide for the needs
of the infant Niall Herron, as a matter of extreme urgency, by providing for
him a residential place for the psychological assessment, diagnosis and
treatment of his disturbed mental state and consequent dysfunctional behaviour,
the examining parties, having due regard to the emerging medical consensus that
Niall ‘s behaviour is displaying psychopathic characteristics, to be
fully experienced in dealing with such states of cognitive distortion and
manipulations etc. and in the treatment
________________________
page break ________________________
(18)
of
same, so to avoid, or as far as practicable neutralise, the probability of the
said infant becoming a sexually dysfunctional person with a compulsion towards
paedophile activity, in such a way that
(i)
the personal safety, physical health and security of the said infant are not
put in danger by the refusal of the said infant to co-operate with the said
assessment, diagnosis and treatment, and
(ii)
the Plaintiffs inalienable and imprescriptible rights to custody and
guardianship of her son are not violated
which
application was granted by order made on that date by Barron J.
This
was the relief subsequently sought in the Notice of Motion issued, in pursuance
of such order, by the Applicant and still remains the relief sought by her,
though the child is no longer an infant within the meaning of that term as set
forth in the
Guardianship of Infants Act, 1964 as amended.
At
the time when the Applicant was given liberty to seek relief by way of judicial
review the child, who was born on the 3rd October, 1980 was 12 years of age.
________________________
page break ________________________
(19)
He
has now reached the age of 19 years and the issue as to whether, having
attained the age of 18 years, he is suffering from mental or physical
disability to such extent that it is not reasonably possible for him to
maintain himself properly within the meaning of Sec.
11(5)
of
the 1964 Act as inserted by
Sec. 6(b) of the 1985 Act, has never been determined.
As
appears from his judgment the learned trial judge considered that “
the
Court had jurisdiction to deal with the matters which are in issue in the
proceedings herein notwithstanding the fact that Niall Herron is now more than
18 years old.
”
31. He
bases this conclusion on his analysis of the provisions of the Guardianship of
Infants Act, 1964 as amended, particularly Section 11 of the 1964 Act as
amended by Section 6 of the Age of Majority Act, 1985 and, in effect, regarded
the proceedings herein as one to which the provisions of Section 11 of the 1964
Act applied. He erred in this regard as the proceedings herein are by way of
judicial review.
32. The
fundamental issue remaining in this case is whether the Applicant in this case
and in these proceedings is entitled to seek the relief which she seeks in
respect of her son, he now having reached the age of majority.
________________________
page break ________________________
(20)
33. However,
the Court was informed by Counsel for the Southern Health Board, which is not a
party to these proceedings, that her son, the child herein, is detained in and
receiving appropriate treatment in a mental hospital.
What
Section 6(b) of the
Age of Majority Act,
1985
does
is to make it possible for a guardian to apply to the Court under
Section 11(1)
of the
Guardianship of Infants Act, 1964 for directions on any question as to
the welfare of a child who has attained the age of 18 years and is suffering
from mental or physical disability to such extent that it is not reasonably
possible for him to maintain himself fully. It is to be noted that such an
application under
Section 11(1) of the 1964 Act as read in the light of
sub-section
(5)
of
that section as inserted by
Section 6(b) of the 1985 Act has no upper age
limit.
Section 2(4)(b)(viii) of the 1985 Act would empower the Court to make
orders under
Section 1 l(2)(b) of the 1964 Act for the payment by a parent of
periodical sums by way of maintenance of such a child up to the age of 21 years
but no further.
34. The
Appellant’s proceedings are not proceedings pursuant to Section 11(1) of
the 1964 Act as amended by the 1985 Act nor are they proceedings pursuant to
Section 1 l(2)(b) of the 1964 Act as also amended by the 1985 Act.
________________________
page break ________________________
(21)
35. The
fundamental nature of the Appellant’s proceedings in this case is far
removed from Section 11 of the 1964 Act which is to be found in Part II of that
Act under the heading
“Guardianship
“.
36. The
Appellant’s proceedings the subject matter of this aspect of the appeals
before this Court are judicial review proceedings in which the Appellant seeks
against the Respondents first an Order of Mandamus regarding residential
placement and psychological assessment of Niall Herron and secondly damages. So
far as such proceedings are concerned, Niall Herron is now an adult aged 19
years and the Appellant is not entitled to the relief by way of mandamus or
damages which she seeks.
37. The
present proceedings herein are limited to the grounds upon which leave was
originally granted and the issue now remaining between the parties cannot be
determined in the existing proceedings.
38. Consequently
I would allow the appeal brought by the Respondents against the order of the
learned trial judge re-entering the proceedings.
© 1999 Irish Supreme Court
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