Supreme Court of Ireland Decisions

1. The question posed by this case in the High Court and again in this court can be posed in relatively simple terms. Can the defendants, who are the parents of a 14 month old child, be required by an order of the court to permit the appellants to conduct a medical test - known as the PKU test - on the child? It has, however, involved the court in an anxious consideration of issues the significance of which transcends the facts in the instant case.

2. Those facts can be stated as follows. A test exists, known as the PKU test, which enables it to be ascertained whether a child, who may look healthy and well, is suffering from certain biochemical or metabolic disorders which can be extremely serious but are also treatable if identified at an early stage. The test is generally carried out on a new-born infant between 72 hours of age and 120 hours of age to be most effective. Blood is dropped on to a card - known as a Guthrie card - which is then sent to the Childrens’ Hospital, Temple Street, Dublin where it is tested for four metabolic conditions and one endocrine condition. The four metabolic conditions are phenylketonuria, galactosaemia, homocystinuria and maple syrup urine disease. The endocrine condition is hypothyroidism. All the conditions in question cause either mental handicap or life threatening illness unless they are detected early.

3. The incidents in Ireland of phenylketonuria is one of the highest in the world: 1: 4,500 infants suffer from it. In the case of galactosaemia the figure is approximately 1: 30,000 (with 1: 700 amongst travellers) and in the case of homocystinuria 1: 49,000. Those disorders would, as a result, be regarded as not uncommon. Maple syrup urine disease has an incidence of 1: 110,000 and hypothyroidism a frequency of 1: 200,300.

4. Of these conditions, maple syrup urine disease and galactosaemia become apparent within the first week or four to five days of the child’s life. However, in the case of phenylketonuria, the symptoms may not be detected until a later stage: they may appear in the first two years of life but there are cases in which they are not identified until much later. In one instance in recent years, an eleven year old was detected for the first time. In the case of homocystinuria, the symptoms may not appear until the child is 2 to 2½ years of age, but again, it may not be possible to make the diagnosis until a later stage, ranging from 3 to 6 or 7 years of age. The symptoms of the very common condition of hypothyroidism can be subtle and not easily detected.

5. The risk to the child of having the heel test done is minimal. Even where the test is carried out badly and incorrectly, the worst that could occur is that the little lancet which is used might introduce infection in the skin or at worst in the bone. There is no indication that this has ever happened since the test was first adopted in Ireland in 1966.

6. In January 1998, a working group appointed by the Minister for Health furnished a report on metabolic disorders to the Minister. Their terms of reference were:

7. In their recommendations, the working group said that

8. They then went on to consider the responsibility of health boards, hospitals, health board community care services, general practitioners and midwives and parents for ensuring that every infant is so screened. They were of the view that the ultimate responsibility to ensure that the highest possible number of infants are screened should be placed on the health boards. Under the heading “Responsibility of Parents” , they said

9. The working group went on to recommend the adoption of certain procedures to ensure that adequate records were maintained in hospitals to identify any infant who has not had the test carried out before discharge from the hospital. Special procedures were also recommended for adoption by persons working in the health board community care services to ensure so far as possible that the screening is carried out in the case of all new-born infants who are not born in hospitals.

10. Appendix 1 contains more detailed medical information on the metabolic disorders in question. The report of the working group did not refer to the question as to whether the test should be made compulsory by legislation and no such legislation has been enacted. In accordance with the recommendations of the working group, the plaintiffs in these proceedings have accepted that, in their functional area, the ultimate responsibility for ensuring that the highest possible number of infants are screened for these orders rests on them.

11. The first named defendant is a native of Germany who has resided in Ireland since 1990 and is married to the second named defendant. They have five children, of whom the youngest - referred to in these proceedings to protect his identity as “Paul” - was born on the 30th March 2000. Following their refusal to permit their fourth child, a girl, to be subjected to the test, the plaintiffs applied for and obtained an order under the provisions of the Child Care Act 1991 (hereafter “the 1991 Act” ), the effect of which was to enable the plaintiffs to carry out the test notwithstanding the refusal of the defendants to consent to it. The defendants appealed from that decision, but eventually withdrew their appeal and the test was carried out. However, on the same day the District Court made a similar order in respect of another child which was subsequently reversed by the Circuit Court. In those circumstances, the plaintiffs were advised not to proceed by way of an application under the 1991 Act in the case of persons such as the defendants who withheld their consent to the test being applied to their children.

12. On the 5th May 2000, the plaintiffs wrote to the defendants stating that they had been instructed that they had refused to have the PKU test carried out on their youngest son. They said

13. On the 11th May 2000, the first named defendant replied as follows to that letter:-

14. The present proceedings were then issued in which the plaintiffs claim inter alia declarations that it is in the best interests of Paul that the PKU test be carried out on him, and that the refusal of the defendants to consent to the carrying out of a PKU test on him is a failure to vindicate his personal rights and a mandatory injunction requiring the defendants to furnish their consent to the execution of the PKU test on Paul. An appearance having been entered on behalf of the defendants, the plaintiffs then applied for an interlocutory order permitting the plaintiff to carry out the PKU test without the consent of the defendant and an interlocutory order restraining the defendants from impeding the carrying out by or on behalf of the plaintiff of the PKU test.

15. That application was grounded on two affidavits. The first was sworn by Dr. Eileen Naughton, a consultant paediatrician with a special interest in inherited metabolic disorders practising at Temple Street Childrens’ Hospital. Dr. Naughton said that she had studied paediatrics in Oxford and in London for 14 years and had secured a fellowship in metabolic medicine which she took up in Boston and the Childrens’ Hospital in Great Ormond Street, London. During that time she was a Harvard Fellow. She had been the first consultant in Ireland to be appointed to the particular speciality of inherited metabolic disorder and had been so practising for 14 years. Dr. Naughton’s evidence as to the nature, necessity for and defects (if any) of the PKU test has already been summarised in this judgment.

16. In a further affidavit grounding the application, Dr. Caroline Mason, the acting senior area medical officer of the plaintiffs for County Donegal, said that

17. In a replying affidavit, the first named defendant said that he had been born in Stuttgart, Germany on 2nd February 1957 and had resided in Ireland since 1990 or thereabouts. He married the second named defendant on the 7th December 1991. Prior to moving to Ireland, he worked as a quality assurance officer for the US Army in Germany. At present, he had a smallholding in Co. Donegal. His affidavit went on:-

18. The first named defendant went on to say that the decision they had come to had been taken jointly and after careful consideration and that it was “a decision rightly made by the child’s parents as opposed to the organs of the State.”

19. Having referred to the incidents of the conditions as deposed to in Dr. Naughton’s affidavit, the first named defendant averred that, as none of his four other children had been identified as having any of the conditions, it was even less likely that Paul would be so identified. He also said that, as Paul was only 50% of Celtic blood, the risk factor would be less. He said that neither he nor the second named defendant was aware of any incidence of these conditions in their relatives.

20. The first named defendant said that his family had undergone “a very upsetting experience” when their daughter had the test done at the age of 9 months and that the child “became very unsettled” for a long period afterwards.

21. The second named defendant in an affidavit said that

22. She also referred to their daughter as having been “very upset and out of sorts” for a long period after the test and that she had found the whole episode “extremely distressing” . She said that her emotional well-being and mental health suffered as a result.

23. The plaintiffs’ motion seeking interlocutory relief was heard by McCracken J. The only oral evidence at the hearing was given by Dr. Naughton. Referring to what trauma, if any, the procedure caused for the child, she said

24. Dr. Naughton said that the fact that other children had not manifested the conditions in question did not prove that it did not genetically exist within the family. She had looked after many families where they have had one or two children already and that the screening had then shown up the fact that both parents were carriers. They would have had no knowledge of that until the positive result of a test. She said that the parents could not be themselves tested to see whether they were carriers. However, once the baby was identified as suffering from the condition, the parents were then identified as carriers. If both parents were carriers, there was a one - in - four risk at each conception of the child inheriting one or other of the conditions.

25. Dr. Naughton said that, so far as phenylketonuria was concerned, severe mental handicap would be the principal consequence, manifesting itself in a reduction of the child’s I.Q., to a point where they become totally dependent on others, never achieving an independent existence. While the conditions were capable of being improved to a degree, there was no effective treatment if it was left too late . If the condition was identified early enough, the child would be expected to achieve its normal potential I.Q. and normal potential well-being. Dr. Naughton said that hypothyroidism would give rise to severe mental handicap, classically manifesting itself in a dislocation of the lens of the eye at approximately two years of age. The child might also die young from strokes and emboli to the lungs.

26. In the case of all these conditions, she said that these were the more severe manifestations. There could also be more minor consequences but it was most unlikely that the condition would be without any adverse consequences.

27. As to maple syrup disease, Dr. Naughton said

28. In the case of galactosaemia, children would get damage to their livers and, as a result, a coagulation problem where they bleed into their primary organs such as the brain and the heart. A child died in Ireland every couple of years from galactosaemia, even despite the screening, because of the severe nature of the condition.

29. Dr. Naughton agreed in cross examination that there was a possibility of “false positives” in the system. She also agreed that other tests had been used prior to the Guthrie test and said of them

30. She said that the alternative tests would now be rarely carried out, except in undeveloped countries where they might not have the blood tests available to them.

31. Dr. Naughton said that the Irish screening programme was one of the models for national screening: it was modelled on the Massachusetts screening in the United States. As to the screening programme in the United Kingdom, she said that, while it was excellent, it was concerned with a different set of conditions because of the particular genetic mix and the frequency of recurrence of conditions in that country. They did not screen for homocystinuria or galactosaemia, although there was an international recommendation that they should, and they did not screen for maple syrup urine disease.

32. Dr. Naughton said that the screening programmes in the U.K., other European countries and the United States were voluntary: the procedure adopted everywhere was to ensure that parents had been well informed and accepted responsibility by signing a “refusal-to-screen form” .

33. In re-examination, Dr. Naughton referred to the suggested alternative methods in the following passage:

34. It also appears from the evidence that during any one year the number of parents nation-wide who have refused to have the test is not more than six.

35. In his judgment, the learned High Court judge said that, while it was clear that under Article 40.3.2° of the Constitution there was a duty on the State to protect, defend and vindicate the personal rights of the citizens, this obligation was not unlimited or universal. Having said that the obligations of the State under the Article had been applied in a number of cases dealing with children, he went on to say:-

36. The trial judge also commented that it was quite clear from Article 42.5 of the Constitution that such a jurisdiction only existed in exceptional cases

37. As to the instant case, he said

38. Having referred to the fact that parents constantly make decisions of this nature and subject their children to risks which objectively might not be justified and which could have disastrous results - such as allowing a child to cycle to school on a busy road - he went on

39. He summed up his conclusion as follows:-

40. He also said that the wording of Article 40.3.2° did not provide in his view, a constitutional justification for the intervention by the plaintiff in this case. He said that the “unjust attack” or “injustice done” referred to in the article could only be the refusal of the defendants to allow the test to be carried out on Paul. Apart from the fact that he did not consider this to be an injustice to Paul, he said that, even if he were wrong, the State has not chosen to use its laws to protect Paul in the manner envisaged by Article 40.3.2º. He said that if the State believed that it had an obligation to make it unlawful for parents to refuse to allow their children to undergo tests such as this, the State through the Oireachtas could so provide in legislation and that legislation could then be tested in the courts for its constitutionality.

41. In the result, the trial judge refused the application of the plaintiffs. From that judgment and order the plaintiffs now appeal to this court.

42. On behalf of the appellants, Mr. Paul Gallagher S.C. submitted that the jurisdiction of the court to make the orders sought derived from three separate sources. The first was the constitutional jurisdiction of the High Court to intervene so as to protect the interests of a minor where his or her personal rights were under threat. He submitted that this was clearly established by a series of decisions commencing with G. .v. An Bord Uachtála (1980) IR 32 and had been confirmed by the decisions of this court in F.N. .v. The Minister for Education (1997) 1 IR 409 and D.G. .v. Eastern Health Board (1998) 1 ILRM 241. He said that it was clear from those decisions that the High Court had a jurisdiction to direct the undertaking of a procedure which was no more than marginally invasive and which was designed to secure the health and welfare of a child in circumstances where his or her parents did not consent to the procedure. He submitted that the failure of the defendants to consent to the carrying out of this test had created a situation in which, for no compelling or countervailing reason, the life and bodily integrity of the child were being threatened and in circumstances in which the child could not himself make an informed determination as to whether or not the risks consequent upon the failure to administer the test should in fact be taken. He submitted that, in accordance with the principles laid down in The State (Quinn) .v. Ryan (1965) IR 70, 122, this court should hold that the powers of the High Court in the protection of the child’s constitutional rights were as ample as the defence of the Constitution required.

43. Mr. Gallagher submitted that the second basis for the jurisdiction was the inherent jurisdiction of the court to grant relief of this nature in the case of minors, irrespective of whether they were wards of court or not. He said that the existence of what was sometimes described as the parens patriae jurisdiction in cases such as the present had been recognised by the English courts in cases such as Re E (a minor) (1990) 9 BMLR 1, Re W. (a minor) (1992) 4 All ER 648, Re O. (1993) 4 Med LR 272; Re B. (1981) 1 WLR 1421 and Re C. (a child) HIV test (1999) 3 FCR 289. He submitted that this jurisdiction, despite its historical origin in the royal prerogative, existed in Ireland, as the decisions already referred to had made clear. In the case of persons in wardship, it was now derived from the Courts (Supplemental Provisions) Act 1961, which kept in being the jurisdiction at one time exercised by the Lord Chancellor of Ireland and the Lord Chief Justice of Ireland. The authorities already referred to put it beyond doubt that the jurisdiction also existed in similar cases where the child was not a ward.

44. Mr. Gallagher submitted that in any proceedings concerning the custody, guardianship or upbringing of an infant, the court must be guided by the principle that the welfare of the child is the first and paramount consideration, referring in this context to s. 3 of the Guardianship of Infants Act 1964 and the decision in Southern Health Board .v. C.H. (1996) IR 219, 237. He said that the evidence in this case overwhelmingly established that the administration of the test was clearly in the best interests of the child and this, indeed, had been so found by the trial judge.

45. Mr. Gallagher said that, while a case of this nature had not hitherto come before the Irish courts, there are helpful precedents from other jurisdictions. Thus, in Re C. (a child) (HIV test ), (2000 1 WLR 2) the English High Court had directed that a six months old baby, whose mother was HIV positive, should be subjected to a blood test with a view to determining whether she was also infected: the court had so determined on the basis that the advantages to the child of the proposed test were very substantial and that the case for testing the child was “overwhelming”. The English courts in that case and the subsequent decision of the Court of Appeal in Re T. (a minor) (Wardship: Medical Treatment) (1997) 1 All ER 906 had treated as an obvious and important consideration the wishes of the parents in the matter but had concluded that in some cases at least the best interests of the child required the medical intervention in issue: in other cases those interests, the courts had concluded, might be better served by entrusting the decision to parents. Mr. Gallagher submitted that a similar approach should be adopted in this jurisdiction, having regard to the observations of Ó Dálaigh C.J. in Ryan .v. Attorney General (1965) IR 294, the case concerning the introduction of fluoride into drinking water. He also cited the observation of Walsh J. in G. .v. An Bord Uachtála that one of the duties of parents was to provide as best they could for the welfare of their children and to ward off dangers to their health.

46. As to the fact that the Oireachtas has not enacted legislation providing that the PKU test should be compulsory, Mr. Gallagher submitted that the emphasis placed by the trial judge on this fact was misplaced. He said that the jurisprudence of this court had established that, where a threat to a child’s rights to bodily integrity, health and life were established, the absence of legislation could not oust the jurisdiction of the court to uphold the child’s rights. He cited in this connection the decisions in The State (Quinn) .v. Ryan and Meskill .v. C.I.E. (1973) IR 121 and the statement of the law in Kelly on The Irish Constitution (3rd Ed.) at p. 1047. He further urged that the conclusion of the trial judge that, if the State wished to make the test compulsory, it should legislate to that effect on the basis that the legislation could then be tested in the courts for its constitutionality was difficult to reconcile with his conclusion that a compulsory administration of the test would be totally at variance with the spirit and the word of the Constitution.

47. Mr. Gallagher also submitted that the trial judge was wrong in law in holding that the jurisdiction of the court to intervene in decisions falling within the concept of parental authority was defined and limited by the provisions of Article 42.5 of the Constitution. He said that, on the contrary, it had been made clear in the decision of this court in Re J.H. (1985) IR 375 that the power of the court to intervene in the interests of the child was not confined to cases coming within Article 42.5, but extended to cases where the child’s rights fell to be considered under other Articles, such as Article 42.1, where there were compelling reasons for such intervention. However, even if the instant case fell to be decided solely by reference to Article 42.5, he submitted that there were indeed exceptional circumstances in the present case which made it imperative for the court to intervene.

48. On behalf of the defendants, Mr. Donal O’Donnell S.C. submitted that the essential issue raised by the case was as to whether the decision of the defendants, as the parents of the child, could be overridden and, if so, by what body and by reference to what legal and constitutional standards. He said that the decision as to the PKU test was only one of a vast range of decisions that parents of infants make on their behalf and which were by no means limited to medical procedures. He said that few of these decisions had been overridden by the courts or sought to be overridden, even where they appeared wrong or even reckless. He submitted that, while some parental decisions on behalf of a child in relation to medical or health procedures could be overridden by a court - e.g. a refusal to sanction a blood transfusion in a life threatening situation - there were also parental decisions which clearly could not, e.g. a refusal to consent to vaccination for a range of diseases. Mr. O’Donnell submitted that the plaintiffs had failed to establish a principled basis for distinguishing the present case from the many other difficult decisions which are routinely made by parents and not reviewed by the courts. He said that an exceptional intervention of the kind proposed in this case could only be justified in the case of a functioning family where it was clearly necessary to save the life or protect the health of a child from an immediate and serious threat.

49. Mr. O’Donnell submitted that, if the orders sought in the present case could be granted, it would in effect make this test compulsory for all children on pain of a coercive sanction against their parents: in such a situation, the consent procedure now being operated would become meaningless, since only one answer was permissible to the request for consent. It would also follow that the State had been in breach of its duty to children for at least thirty years during which it had, at its own cost, maintained a voluntary scheme. Mr. O’Donnell urged that the decision to make any medical procedure compulsory was a complex and difficult one, which one would have expected to have been collectively taken by the Oireachtas after a report by an expert group and public debate. Thereafter, the resulting legislation could be tested by constitutional challenge, whereas, in the present case, the appellants were contending that the matter could be conclusively decided by the decision of the court, however inadequate the evidence.

50. Mr. O’Donnell submitted that the test proposed by the appellants for determining whether the screening should be ordered by the court excluded the parents completely from the decision making process. He said that this was not the appropriate test. The weight of medical opinion in favour of the PKU test was clear: whether the order should be made or not was dependent on the weight to be given to the concept of parental autonomy. While that factor of itself might well in the present case point to the decision being made by the parents rather than the plaintiffs or the court, in this jurisdiction the relevant provisions of the Constitution brought down the scales even more decisively in favour of family and parental autonomy.

51. Mr. O’Donnell submitted that the provisions of Article 42 of the Constitution were inconsistent with the concept of a parens patriae jurisdiction based on the principle that the sovereign knows best. In this jurisdiction, the general rule was that parents should be left to do their best, even if individual decisions appear wrong, perhaps clearly wrong, save in exceptional circumstances where there was a direct and serious threat to the health or life of the child. He submitted that neither the State nor the courts were in a position to provide security and comfort for the child during its early life and that, accordingly, the family, with all its complications, imperfections and difficulties, provided the surest route by which this desirable care could be provided. He cited in this connection the observations of a leading US commentator on childrens’ rights, i.e. Goldstein “Medical care for the Child at risk: on State supervention of parental autonomy” , 86 Yale Law Journal 619.

52. Mr. O’Donnell submitted that the English decision of Re C. (a child) HIV test was distinguishable, since in that case the consequence of the court’s decision was not the compulsory imposition of a particular test on a nation-wide basis, but rather a requirement that a test should be carried out in the circumstances of the particular case. He also submitted that the observations of Ó Dálaigh C.J. in Ryan .v. The Attorney General relied on by the plaintiffs were made in a different context: in that case, the plaintiffs were effectively seeking to prevent everyone from having the benefit of fluoridated water, whereas in this case the parents merely sought an exemption for themselves.

53. Mr. O’Donnell further submitted that the High Court had been invited in this case to make what was effectively a decision of general application on matters of social policy, striking a delicate balance of rights and interests which was peculiarly within the province of the Oireachtas and that this was in breach of the separation of powers. He cited in this context the observations of this court in In re Article 26 and the Information (Termination of Pregnancies) Bill 1995 , of the Supreme Court of Canada in Re Eve (1984) 31 DLR 1 and of the Australian High Court and Family Court respectively in Secretary, Department of Health and Community Services .v. J.W.B. and S.N.B. (Marion’s case) (1991 - 1992) CLR 218 and L and G.M. .v. M.M. (Medical Law Review) (1995) 3, 94. He also cited s. 4 of the Health Act 1953 as reflecting the clear policy of the Oireachtas that parents should not be obliged contrary to their wishes to submit their children to “health examination or treatment” .

54. Since, in instituting the proceedings in the present case, the plaintiffs were mindful of their statutory duties and functions under the Child Care Act 1991, the relevant provisions of that Act should be set out.

55. Section 16 provides that

56. Section 17 provides for the making of an “interim care order” by a judge of the District Court. Section 18 provides that

57. Such a care order commits the child to the care of the health board for as long as he remains a child or for such shorter period as the court may determine. Sub-section (3) requires a health board, where a care order is in force, to give consent “to any necessary, medical or psychiatric examination, treatment or assessment with respect to the child” . Sub-section (4) provides that such a consent is to be sufficient authority for the carrying out of the examination or assessment in question.

58. Section 19 entitles the court, again on the application of the health board, to make a “supervision order” on the same grounds as a care order can be made and where it is desirable that the child be visited periodically by or on behalf of the board. Sub-section (4) provides that, where such a supervision order is made, the court may, on the application of the health board

59. Sub-section (5) then goes on to provide penalties - including at the court’s discretion imprisonment for a term not exceeding six months - where any person fails to comply with the terms of a supervision order.

60. As already noted, the plaintiffs in this case sought to operate the provisions of the 1991 Act in the case of the defendants’ fourth child but, following the decision in the Circuit Court, decided in the present case to proceed by way of an application to the High Court.

61. Article 40.3 of the Constitution provides inter alia that

62. Under the heading “The Family” , Article 41.1 provides that

63. Article 42.1 under the heading “Education”, says

64. Article 42.5 under the same heading provides that

65. These articles are described in Kelly on The Irish Constitution , 3rd Ed. p.991 as “among the most innovatory in the entire Constitution” . The learned editors also comment that the articles are generally thought to have been inspired by papal encyclicals and by Catholic teaching: they point out, however, that the 1919 Weimar Constitution contained a declaration of the special status, and the State’s special protection, of marriage and motherhood, as well as of parents’ rights and duties.

66. While Article 12 of the European Convention on Human Rights and Fundamental Freedoms acknowledges the right of everyone to respect for his family life, neither the Canadian Charter of Rights and Freedoms nor the Commonwealth of Australia Constitution Act - to mention two jurisdictions precedents from which were cited in the submissions - contain any articles equivalent to those contained in our Constitution.

67. Article 41.1 acknowledges the primary role of the family in society. In philosophic terms, it existed as a unit in human society before other social units and, in particular, before the unit of the State itself. The philosophical origins of the modern system of democracy are to be found in the beliefs of Locke and Rousseau that civil government is the result of a contract between the people and their rulers: the family existed before that unit and enjoys rights which, in the hierarchy of rights posited by the Constitution, are superior to those which are the result of the positive laws created by the State itself. As the trial judge noted, this is an express recognition by the framers of the Constitution of the natural law theory of human rights, but the belief that the family occupies that philosophic status in contrast to the role of the State is by no means confined to those thinkers who subscribe to that particular philosophy.

68. What is beyond argument is that the emphatic language used by the Constitution in Article 41 reflects the Christian belief that the greatest of human virtues is love which, in its necessarily imperfect human form, reflects the divine love of the creator for all his creation. Of the various forms which human love can take, the love of parents for their children is the purest and most protective, at least in that period of their development when they are so dependant on, and in need of, that love and protection. I believe that Article 41, although couched in the language of “rights”, should not be seen as denying the truth to be derived from the experience of life itself, that parents do not pause to think of their “rights” as against the State, still less as against their children, but rather of the responsibilities which they joyfully assume for their childrens’ happiness and welfare, however difficult the discharge of those responsibilities may be in the sorrows and difficulties almost inseparable from the development of every human being. The rights acknowledged in Article 41 are both the rights of the family as an institution, and the rights of its individual members, which also are guaranteed in Article 42, under the heading “Education”, and which also derive protection from other articles of the Constitution, most notably Article 40.3.

69. Again, the Article speaks, not of the authority of parents, but of the authority of the family. While the family, because it derives from the natural order and is not the creation of civil society, does not, either under the Constitution or positive law, take the form of a juristic entity, it is endowed with an authority which the Constitution recognises as being superior even to the authority of the State itself. While there may inevitably be tensions between laws enacted by the State for the common good of society as a whole and the unique status of the family within that society, the Constitution firmly outlaws any attempt by the State in its laws or its executive actions to usurp the exclusive and privileged role of the family in the social order.

70. The family as a concept is, of course, meaningless divorced from the individuals of which it is composed. This leads to an important consequence in the context of the present case identified in the following passage from the judgment of Ellis J. in P.W. .v. A.W. (unreported); (judgment delivered 21st April 1980):

71. That was a case concerned with the custody of a child. However, I am satisfied that the statement of the law by the learned judge is of general application, although it clearly must be viewed in the light of the later decision of this court in In Re J.H. (an infant) .

72. In that case, an infant girl, who was the subject of the proceedings, was placed in foster care by her natural mother one week after her birth and for adoption within three months of her birth. The natural mother later married the father of the infant and in subsequent correspondence with the Adoption Society refused to give her consent to an order for the infant’s adoption. Proceedings having been brought both under the Adoption Act 1974 and the Guardianship of Infants Act 1964 in which the natural parents and the adoptive parents both sought custody of the child, the case was heard in the High Court. During the hearing, there was psychiatric evidence indicating that there was a risk of long term psychological harm to the infant if custody was transferred from the adopting parents to the natural parents. In this court, Finlay C.J. said that the infant had, in addition to the rights of every child, rights under the Constitution as a member of a family which he defined as follows:-

73. Having pointed out that the child in that case, who was in the custody of persons other than its parents, contrary to their wishes, could not be said to enjoy the right of education by her family and parents “granted by Article 42,

74. It will be seen that In Re J.H. , (like W. .v. W. ), was concerned with a dispute as to the custody of a child between its parents or parent and a stranger or putative adoptive parents. A question, accordingly, arose, with which this court is not concerned in the present case, as to whether in resolving such a custody dispute under the 1964 Act, the court was obliged to presume that the welfare of the child would best be served by its being brought up within the family, unless there were “compelling reasons” for holding the contrary or, alternatively, the evidence satisfied the court that this was an exceptional case of the parents having failed in their duty within the terms of Article 42.5. Those issues do not arise in this case: irrespective of its outcome, Paul will remain in the custody of his parents and his right to remain a member of the family whose authority is protected by the Constitution will be unaffected. The statement of the law by Ellis J. that the rights of the family under Article 41 attach to each member of the family, including the children, and that the only way that those rights can be protected in the case of children is by the courts treating the welfare of the child as the paramount consideration do not have to be read in cases other than custody cases subject to the qualification laid down by the court in In Re J.H. (an infant) .

75. Article 41.1 was further considered by this court in In Re Article 26 of the Constitution and the Adoption (No. 2) Bill, 1987 . Giving the judgment of the court, Finlay C.J., having referred to the provisions of Article 41.1, Article 42.3 and .5 and Article 40.3.1 and 2 said

76. The judgment also states that

77. The personal rights referred to in that passage would obviously include the express rights of the child as guaranteed by Article 40.3 together with the unenumerated rights also protected by that Article.

78. The child’s unenumerated rights were said by Finlay P. (as he then was) in G. .v. An Bord Uachtála (1980) IR 32 to include

79. The intervention of the High Court in this case was sought by the plaintiffs in order, as they claimed, to protect and vindicate the personal rights of Paul under Article 40.3, including the unenumerated rights referred to in that passage. Specifically, it was said that the court had an inherent jurisdiction to protect those rights which was not dependent on any statutory provision.

80. That such a jurisdiction exists is, I think, clear. The cases in which it may be invoked will, of course, be unusual and perhaps even exceptional, since in the vast majority of cases it can safely left to the parents to protect their childrens’ rights. It is not the law, however, that the courts are powerless to protect those rights in cases where, for whatever reason, they cannot be afforded that protection by the other organs of State or where - as here - it is said that they are not being upheld by the parents. This principle emerges clearly from the decision of the High Court in F. N. .v. The Minister for Education (1997) 1 IR 409 and of this court in D.G. .v. Eastern Health Board (1998) 1 ILRM 241.

81. That inherent jurisdiction of the courts which derives exclusively from the provisions of the Constitution must be distinguished from what has usually been called the parens patriae jurisdiction. The nature of that jurisdiction is usefully summarised in the judgment of La Forest J. in the Canadian Supreme Court in Re Eve . Having referred to the origin of that jurisdiction as it was exercised in the case of the mentally incompetent, which had its origins in the royal prerogative, he pointed out that it was ultimately transferred to the Court of Wards and Liveries: thereafter the Crown exercised its jurisdiction through the Lord Chancellor. While the wardship of children had a quite separate origin as a property right arising out of the feudal system of tenures, the concept of wardship survived the abolition of both the tenures and the Court of Wards. It was effectively kept alive by the Court of Chancery, which justified it as an aspect of its parens patriae jurisdiction: see the old Irish case of Morgan .v. Dillon (1724) 9 Mod. R 135 at p. 139. In Ireland, the procedure was also exercised by the Lord Chancellor and, during the short interregnum between the Treaty and the Courts of Justice Act 1924 by the Lord Chief Justice of Ireland. It was then transferred to the Chief Justice of Saorstát Éireann and ultimately to the President of the High Court by the Courts of Justice Act 1936. It is, of course, still vested in the President by virtue of the Courts (Supplemental) Provisions Act, 1961.

82. Since Paul has never been a ward of court, the President of the High Court was never asked to exercise the parens patriae jurisdiction in respect of him and we are, accordingly, not concerned in this case with the issues that arose in Re Eve , and other cases decided under the parens patriae jurisdiction in common law countries, as to the respective roles of the parent, the committee of the ward and the court itself. There are, however, statements of general principle contained in those decisions which, I think, are of some assistance in resolving the issues which do arise in this case.

83. Counsel are in agreement that, so far as those issues are concerned, there is no Irish authority directly in point. The plaintiffs did, however, rely on certain passages in the judgement of this court in Ryan .v. The Attorney General .

84. The plaintiff in that case was a member of a voluntary association which strongly objected to legislation which provided for the fluoridation of the public water supply throughout the Republic with a view to improving the standard of dental health throughout the community. It differs markedly from the present case, since, in the hearing in the High Court before Kenny J., which, by the standards of those days was remarkably protracted, a considerable volume of scientific evidence was adduced on behalf of the plaintiff to the effect that fluoride was dangerous to health. The plaintiff accordingly argued that to oblige her and her family to accept water through the public water supply was an infringement of the personal rights guaranteed under Article 40.3. Kenny J. found in favour of the plaintiff’s contention that her personal rights were not exhausted by the categories set out specifically in the article and extended to other unenumerated rights, including the right to “bodily integrity” . That judgment, as approved by this court, constitutes, of course, the fons et origo of the entire doctrine of unenumerated rights under the Constitution. On the facts of the case, however, Kenny J. found that the plaintiff had not established as a matter of probability that fluoridation would be dangerous to health. This court upheld that decision, but, delivering the judgment of the court, Ó Dálaigh C.J. made certain observations which are strongly relied on by Mr. Gallagher in the present case. Having referred to the guarantee in Article 41.1.2º by the State to protect the family “in its constitution and authority” , the learned Chief Justice went on:-

85. To the same effect is the following passage in the judgment of Walsh J. in G. .v. An Bord Uachtála :-

86. The cases from three other common law jurisdictions - the United Kingdom, Canada and Australia - must next be considered. The cases principally discussed in the course of argument were Re E. (a minor) (1990)

87. I shall consider first the last of these categories since, although they raise difficult and sensitive issues on which divergent views have been expressed by judges in the various jurisdictions but do not arise in this case, there are passages in some of the judgments upon which Mr. O’Donnell strongly relies.

88. Before considering the three cases, I should recall the notorious remark of Holmes J. in the United States Supreme Court decision, Buck .v. Bell (1927), 274 US 200, concerning the sterilisation of a mildly retarded woman who already had a child and who was the daughter of a similarly afflicted woman: “three generations of imbeciles are enough” . In fairness to the great judge and the members of the majority who shared his view (although they did not express it in such distasteful terms), it must be remembered that at that time eugenic reform was regarded by many as a liberal and progressive concept [1]. The hideous attempts in Nazi Germany to put it into practice have naturally made courts in our time much warier in their approach to what might seem to be eugenic measures. That caution is evident in these cases, the first of which is Re Eve .

89. In that case, a mother applied for permission to consent to the sterilisation of her mentally retarded daughter. While she was able to carry out what were described as “the mechanical duties of a mother, under supervision” , it was accepted that she was incapable of being a mother in any real sense. The Supreme Court of Canada held that the courts should never authorise what they described as the non-therapeutic sterilisation of a mentally retarded person under the parens patriae jurisdiction. The court said that the grave intrusion on the retarded person’s rights and the certain physical damage that ensues from such a procedure, when compared to the “highly questionable advantages” , that can result from it, led to the conclusion that it could never safely be determined that such a procedure is for the benefit of that person.

90. La Forest J. commented:-

91. The court also rejected in that case a submission that it should adopt what has been called the “substituted judgment” test: that would, in effect, place the court in the position of making a determination which the mentally incompetent person would make, if competent to do so. The court applied instead the test of what was in the best interests of the person concerned and, as already noted, concluded that it had not been established that the sterilisation procedure was in the best interests of Eve.

92. When a similar issue came before the English courts in In Re B. (a minor) (Wardship: Sterilisation) , the House of Lords declined to accept the view in Re Eve that sterilisation of a mentally incompetent person for non-therapeutic reason could never be ordered under the parens patriae jurisdiction. In that case, a girl of seventeen years was described as suffering from a moderate degree of mental handicap but had “a very limited intellectual development” . Her ability to understand speech was that of a six year old and her ability to express herself that of a two year old child. Her mother, and the staff at the local authority residential institution where she lived, having become aware that she was beginning to show signs of sexual awareness, applied for an order making her a ward of court and for leave to be given for her to undergo a sterilisation operation. Evidence was adduced that she could not be placed on any effective contraceptive regime and that she was not capable of knowing the causal connection between intercourse and childbirth, the nature of pregnancy or what was involved in delivery. She would panic and require heavy sedation during a normal delivery, which carried the risk of injury to the child, and delivery by caesarian section was deemed to be inappropriate owing to the likelihood of her opening up her post-operative wounds, thus preventing the healing of the scar. She had no maternal instincts and was unlikely ever to desire or to be able to care for a child. The High Court gave leave for the operation to be carried out and, on an appeal by the official solicitor, the appeal was dismissed.

93. In the course of his speech, Lord Hailsham, L.C. said

94. Lord Hailsham in the course of his speech referred to the High Court decision of Heilbron J. in Re D. (a minor) (Wardship: Sterilisation) (1976) Fam. 185, 193. In that case, he said the judge had rightly referred to the irreversible nature of such an operation and the deprivation, which it involved, of a basic human right, namely, the right of a woman to reproduce. In that case, Heilbron J. had refused to sanction the sterilisation operation: Lord Hailsham said that he had no doubt whatever that the case was correctly decided, but added that the right referred to was only such

95. Mr. O’Donnell took issue with this passage as being unduly dismissive of the approach adopted in Re Eve . However, it is clear that the House of Lords were satisfied that Re Eve was correctly decided on its own facts. In his speech, Lord Bridge emphasised that La Forest J. had said that there was no evidence that giving birth would be more difficult for Eve than for any other woman. He approved of the view of Heilbron J. that the right of a woman to reproduce was a basic human right and of the reference in Re Eve to “the great privilege of giving birth” . Lord Oliver, who referred to the “extremely instructive judgment of La Forest J. in Re Eve ”, said:

96. The third of these cases is the decision of the High Court of Australia in Secondary, Department of Health and Community Services .v. J. W. B. and S.N.B. (Marion’s case) . The parents of Marion, a fourteen year old mentally retarded girl, applied to the family court for an order authorising the performance of a hysterectomy and an ovariectomy on her. The child had commenced menstruation and it was said on behalf of the parents that she was incapable of caring for herself physically and/or understanding or properly understanding the nature and implications of sexuality, pregnancy and motherhood and that, accordingly, it was in her best interests that she undergo the operations in question. The court having ruled inter alia that it could authorise the operations, an appeal was brought to the High Court. A number of questions arose which are not directly relevant to the present case, including the question as to whether the parents themselves could authorise the operation to be carried out on the child without the intervention of the court. The majority held that the operation could not be so carried out, but that it could be carried out by an order of the family court as being in the best interests of the girl. In a dissenting judgment, Brennan J. held that neither the parents nor the courts possessed any power to authorise the non-therapeutic sterilisation of intellectually disabled children, declining to follow the approach of the House of Lords in Re B. In the course of his judgment, the learned judge said

97. Having cited a passage from a paper entitled “Patients, Doctors and Human Rights” by Professor Ian Kennedy in which he described the “best interests” test as “empty rhetoric” , Brennan J. went on

98. Evidently, in all these decisions, two factors weighed heavily with the courts in determining the circumstances in which either parents or courts could authorise the sterilisation of a female, whether for non-therapeutic or therapeutic reasons: the irreversible consequences for the person concerned and the seriously invasive nature of the medical procedures involved. Mr. O’Donnell, however, submitted that they reflected an approach by the House of Lords - and by implication, other English courts - which was inconsistent with the values of the Irish Constitution and with the approach in other common law jurisdictions, such as Canada and Australia, and that the English decisions which were closer to the facts of the present case should be read in the light of this suggested difference of approach.

99. I am satisfied that a careful examination of the authorities in question lends no support to that proposition. As already noted, the view of the House of Lords - that sterilisation could be authorised for non-therapeutic purposes - was also the view of the majority of the High Court of Australia. There was undoubtedly a divergence of approach, in the case of non-therapeutic sterilisation, between the Supreme Court of Canada and the House of Lords, but it seems to me a serious overstatement to say that it was based on a fundamental difference in constitutional values between the two jurisdictions: on the contrary, the Canadian charter contains no provisions equivalent to our articles relating to the family. Nor does the Commonwealth of Australia Constitution Act. While Brennan J. was of the view that the “best interests” test was not necessarily a satisfactory guide, of itself, for courts to follow, his comments were confined to the extremely difficult issues which arose in the sterilisation cases and, as it happens, the majority of the court did not accept his view on that matter.

100. I have considered these cases at what may seem unnecessary length simply because Mr. O’Donnell relied on them strongly in support of the submission to which I have referred. In the context of the present case, it is sufficient to say that, not merely are the issues that arose in those cases entirely distinguishable from the issue with which we are concerned: there is no indication in any of the judgments that the courts in any of these jurisdictions were invoking principles which were in some fundamental sense at variance with the principles set out in the articles of our Constitution dealing with the family.

101. That brings me to the English decisions which, it is accepted, are closer to the facts of the present case.

102. The parents withheld their consent on the ground that the application for an order was “an affront to their parental autonomy” . They also relied on what they claimed was medical evidence that the test was unnecessary and of no value.

103. In his judgment, Wilson J. said that, on the evidence before him, 20% of babies infected with HIV would develop a serious AIDS-related illness within the first year of life unless they were treated with a prophylactic. The concerns of the parents in that case arose, not simply because of what they regarded as a wrongful medical and legal intrusion into their lives, but because of their objection to the treatment which might be indicated and, as the parents saw it, forced upon them, if the test were to be carried out. Having said that he had tried to be “appropriately imaginative” about the position of the parents, Wilson J. pointed out that the baby had rights of her own, reflected in both national and international law. He summed up his conclusion as follows:-

104. Mr. O’Donnell sought to distinguish this case on the ground that it did not raise any question of a blanket test extending to the entire population: rather it proceeded on the basis that there was a risk in the particular circumstances of the case of transmission of HIV from mother to child of between 20 to 25%. I am satisfied, however, that the decision cannot be distinguished on that ground. It is clear from the judgment of Wilson J. that he reached his conclusion because 20% of babies infected with HIV would, according to the evidence, develop the aids-related illness within the first year of life. His finding, in other words, was not specific to the particular case. It is, of course, true that the question of a test would only arise where there was a risk of the child being infected with HIV. Whether that is a sufficient ground for considering the approach adopted by the trial judge as wholly inapplicable to the circumstances of the present case is quite another matter.

105. The Court of Appeal set aside the decision of the trial judge. It was held that the judge had failed to assess the relevance of the weight of the mother’s concern as to the benefits to her child of the surgery and post-operative treatment, the dangers of failure both long-term as well as short term, the possibility of the need for further transplants, the likely length of life and the effect on her child of all those concerns, together with the strong reservations expressed by one of the consultants about coercing the mother into playing a crucial part in the aftermath of the operation and thereafter. The court also had regard to the fact that the mother would be required to return to the jurisdiction, possibly without the father, and would thereafter have to manage unaided. Applying the “best interests” test, the court was satisfied that the order should not have been made.

106. In the course of his judgment, Waite L.J., while agreeing with Butler-Sloss L.J. and Roche L.J. that the appeal should be allowed, made the following general observations:

107. I do not think that I do any injustice to Mr. O’Donnell’s submissions in saying that, by implication, he accepted that, if the approach adopted in that case were to be applied, the appeal would have to be allowed. However, he urged the court to hold that the approach of Waite L.J. in failing to give any weight to parental autonomy in cases at what was described as the other end of the scale, although in conformity with a general trend in the English jurisprudence reflected in Re B. (a minor) , could not be adopted in this country consistently with the provisions of the Constitution.

108. In that case, the order of the judge that the minor should be removed to and treated at a specialist hospital was upheld.

109. Ward J. granted the order sought. He was of the view that the relevant legislation entitling persons over the age of sixteen who make such decisions for themselves did not apply, as the ward had not reached that age. The trial judge was also satisfied that he was not of sufficient understanding and maturity to give a full and informed consent and, accordingly, his veto on the treatment could not be binding.

110. Ward J., who described the case as “one of life and death” , said that he found that the influence of the teaching of the Jehovah’s Witnesses was “strong and powerful” . The very fact that the family could contemplate the death of one of its members was, he said, “the most eloquent testimony of the power of that faith” . He summed up his views finally as follows:

111. Those are the decisions from other jurisdictions which were principally relied on in the present case.

112. Mr. O’Donnell also relied on the provisions of s. 4 of the Health Act 1953 which are in the following terms:-

113. This is a somewhat puzzling provision. Apart from any other considerations, it is not easy to understand the purpose of sub-s. (2), since it appears to deal with a situation already covered by sub-s. (1). However, Mr. O’Donnell essentially relied on the section as reflecting a public policy on the part of the Oireachtas which it was entitled to adopt, a decision which was entitled to respect by the courts under the doctrine of the separation of powers.

114. It is, however, the case that this provision appears in a legislative code which is not relevant to the function which the plaintiffs seek to discharge in the present case, i.e. the promotion of the welfare of children in their area who, in their view, are not receiving adequate care and protection.

115. It is true that s. 3(4) provides that

116. That provision was obviously thought necessary in order to ensure that the same statutory provisions which regulate the relations between the Minister for Health and Children and the health boards apply to the discharge of their functions under the 1991 Act. The draftsman has avoided, presumably advisedly, the traditional formula requiring the 1991 Act to be treated for all purposes as part of the same code as the Health Acts, 1947 to 1986, and obliging the courts to construe the two Acts together.

117. In any event, the provision in question does no more than prevent the Health Acts from being read as imposing an obligation on anyone to submit himself (or his children) to health examination or treatment. That is perfectly consistent with the person being under that obligation by virtue of the Constitution and with the power of the court to ensure that the obligation is performed where the responsible person fails in his or her duty.

118. The second limb of the defendants’ argument was effectively based on the separation of powers. It has, of course, been repeatedly held by the courts that the operation of the principle of the separation of powers has as its consequence a recognition that there are boundaries to the areas within which each of the organs of State perform the roles assigned to them under the Constitution. Those authorities and the underlying principles are discussed at length in some of the judgments of this court recently delivered in Sinnott .v. The Minister for Education and Others (unreported; judgments delivered July 12th, 2001. The issue in this case is as to whether, assuming that the inevitable effect of the granting of the order sought is that in every other similar case, the same order will have to be made, it follows that the courts have, in effect, legislated, by converting what has hitherto been a voluntary procedure into a compulsory one, thereby usurping the exclusive legislative role of the Oireachtas.

119. The evidence on affidavit and the oral evidence of the expert witnesses on behalf of the plaintiffs was not challenged in the High Court or in this court. This court, accordingly, must proceed upon the basis that the test to which the plaintiffs wish Paul to be subjected to is one which is required in order to establish whether he is suffering from biochemical or metabolic disorders which can cause death or brain damage, some of which are relatively common and all of which are treatable if identified at an early stage. It is also the case that any risk to the child of having the test is so minimal that, in medical terms, it can be wholly disregarded. It follows inevitably that if this case is to be determined by what is in the best interests of the child, the order sought should have been granted by the High Court.

120. It is also the case that, while in correspondence with the plaintiffs, the first named defendant indicated that he and the second named defendant were objecting to the test on religious grounds, he did not advance that as a reason in the affidavits sworn by him in the proceedings: nor did the second named defendant. The case must, accordingly, be approached on the basis that the only grounds on which the defendants are resisting the carrying out of the test are as deposed to on oath by them, i.e., that it represents the infliction of harm, however minimal, on their child and that this is wrong in principle.

121. In considering the application of the principles of law which I have set out in this judgment to those uncontested facts, I propose to consider first the submission that the court, in ordering the test to be carried out, would be violating the separation of powers principle by, in effect, making a test compulsory which, under present circumstances, is voluntary and which the State have never sought to make compulsory by introducing appropriate legislation.

122. It is, of course, conceded on behalf of the plaintiffs that, if the court orders this test to be carried out on Paul, the overwhelming likelihood is that it will be carried out in the handful of cases where the parents are adopting the same attitude as that adopted by the defendants in the present case. The fact remains, however, that the central issue in this case is as to whether the constitutional rights of Paul fall to be upheld by the High Court and this court. The duty of the superior courts to uphold the rights of the child arises, to the extent that it arises at all, because they are not being upheld by the parents and have not been or, cannot be, upheld by the other two organs of the State. For a court in those circumstances to take such steps as are necessary to uphold the constitutional rights of Paul is to do no more than to carry out its duty under the Constitution and in no sense violates the doctrine of the separation of powers.

123. I have, of course, been proceeding on the assumption that it will inevitably follow that, in any other such case, a similar order will be made. That, however, is not necessarily so. As in every case which comes before the High Court and, on appeal, to this court, the court is confined to considering the case in the light of the evidence adduced and the submissions advanced. I have already pointed out that we are not concerned in the instant case with a refusal based on sincerely held religious beliefs, such as those which so troubled the court in the case of In re E. (a minor) . That is not to say, however, that in another case, however improbable it may now seem, the court might be asked to refuse the order on specific religious grounds which require, at the least, respectful consideration.

124. Of even more significance is the fact that the uncontradicted medical evidence was to the effect that the Guthrie test was the only satisfactory test at present available. As a matter of strict law, the possibility cannot be excluded that in another case the court might be satisfied that the non-invasive testing methods proposed on behalf of the defendants might, in the light of scientific evidence not available in this case, be satisfactory. As Ó Dálaigh C.J. observed in Ryan .v. The Attorney General :

125. Applying that principle to the facts of the present case, I am similarly satisfied that any determination by the court in favour of the plaintiffs cannot amount to more than a decision that, on the evidence produced, the plaintiffs have discharged the onus, which unarguably rests on them, of establishing that the constitutional rights of Paul can only be upheld by the carrying out of the test.

126. I am accordingly satisfied that the submission that the granting of the orders sought by the plaintiff violates the principle of the separation of powers is not well founded. I finally consider whether the plaintiffs have established that the constitutional rights of Paul can only be upheld by the carrying out of the test.

127. I have no doubt that the passage I have cited already from the judgment of Waite L.J. in the English Court of Appeal in Re T. (a minor) also represents the law in this jurisdiction. I do not accept the submission advanced on behalf of the defendants that, because of the particular provisions of the Constitution upholding the authority and constitution of the family, the court, in a case such as this, is obliged to allow the wishes of the parents, however irrational they may be, to prevail over the best interests of Paul, which must be the paramount concern of the court under the Constitution and the law. Far from giving effect to the values enshrined in Article 42, such an approach would gravely endanger his right, so far as human endeavours can secure it, to a healthy and happy life and would be a violation of those individual rights to which he is entitled as a member of the family and which the courts are obliged to uphold. It seems to me that the wise and humane observations of Waite L.J. in Re T. (a minor) are completely in harmony with the philosophy which informs our Constitution since they lay proper emphasis on the weight that must be given, where appropriate, to the wishes of the parents. It is, indeed, noteworthy that, in that case, the court set aside the order at first instance requiring the operation to be carried out and, on one view, the case could be regarded as being at the outer limits of the area in which the wishes of parents may outweigh what, on another view, might have appeared to be, on balance, in the best interests of the child. That the same considerations apply to the compulsory application of a particular test - as distinct from a purely medical procedure - is clear from the decision in Re C , with which I would respectfully agree.

128. I reach that conclusion even though this is not a case in which the wardship jurisdiction of the High Court has been invoked, because I am satisfied that the duty of the court to uphold the constitutional rights of children is not confined to such cases. That duty also arises where, as here, the inherent jurisdiction of the court to uphold those rights is invoked by a party with an indisputable legitimate interest in the child’s welfare.

129. The trial judge was concerned in this case with what he saw as a rapid progression towards “the Brave New World in which the State always knows best” . I think that this, with respect, is a mistaken view. The plaintiffs in this case, as an administrative body charged with promoting the welfare of children in their area, who may be regarded as an emanation of the State, ultimately do not claim to know best: they undoubtedly, however, approach this case on the basis that the scientists know best. It can, of course, be said with some truth that not all the advances of science in our time have been beneficial, although the scientists would doubtless argue that this was because of the misuse which states and other organisations have made of their discoveries and inventions. No doubt, scientists, in common with other groups in society, can also be arrogant and complacent. The fact remains that in our daily lives we constantly

130. It is also a mistaken belief, in my view, to equate the parents’ refusal to allow this test to be carried out with the multitude of decisions parents make in their daily lives concerning the education and upbringing of their children. Every sensible parent recognises that they cannot hope to protect their children from the risks which are an inevitable part, of everyday existence and that, for example, to allow a child to play a particular game which on occasions has resulted in injury to those who take part is a decision which may, depending on the age of the child, have to be made by its parents and which could not conceivably, in any civilised society, be made by the State. None of those considerations apply to the test under consideration in the present case: a conscientious weighing by a properly informed parent of the dangers consequent on not having the test as against the minimally invasive nature of the procedure involved could in this case result in one conclusion only.

131. Nor can any useful analogy be drawn, in my view, with cases in which parents may decline to have their children inoculated or immunised against the risk of contracting specific diseases. It is common knowledge that there are cases in which at least some doctors question the desirability of the procedures involved and a court in such cases might well be reluctant to interfere with the conscientious decision of the parents concerned. That does not arise in this case.

132. Paul is not a party to these proceedings, but the High Court and this court is in the fortunate position that the arguments of someone appearing on his behalf would have been the same as those put forward by the plaintiffs. What is beyond doubt is that, if this test is not administered and in the course of the next few years, he suffers death or serious brain damage as a result, the responsibility will not be that of the defendants alone. In this case, the defendants have refused to protect and vindicate, so far as practicable, the constitutional right of Paul to be guarded against unnecessary and avoidable dangers to his health and welfare. The courts, in my view, can and should.

133. I would allow the appeal and substitute for the order in the High Court an order granting a declaration that it is in the best interests of Paul that the PKU test be carried out on him and that the refusal of the defendants to consent to the carrying out of that test is a failure by them to vindicate his personal rights.

134. This is an appeal by the North Western Health Board, hereinafter referred to as the plaintiff, from a judgment and order of the High Court (McCracken J.) delivered on 27th October, 2000. H.W. and C.W., hereinafter referred to as the defendants, are the parents of a baby boy, J.W., born in 2000. The High Court ordered that the plaintiff’s motion for an order permitting the plaintiff to carry out the PKU test on J.W., notwithstanding the refusal of his parents, or restraining the defendants, their servants or agents from impeding the carrying out by or on behalf of the plaintiff of the PKU test, be refused.

135. The background to this case was described by the learned High Court judge. He stated:

136. The facts are not in issue in this case, they were set out by the learned High Court judge as follows:

137. It is accepted that at this stage there is no necessity for a screening in relation to two of the conditions normally covered by the tests, as they would already have become apparent had they been present. However, the plaintiff emphasises that the remaining three conditions which I already have described could still be present, and if identified at this stage could be treated successfully.

138. In this case the plaintiffs are claiming certain declarations and injunctions, namely:

139. This case raises very serious constitutional issues both with regard to the relationship between parents and their child and with regard to the powers and duties of the State to act for the benefit of children.

140. It is not disputed by the defendants that the court has jurisdiction in this matter pursuant to section 9 of the Courts (Supplemental Provisions) Act, 1961 but what is at issue is the extent of that jurisdiction. The plaintiffs for their part rely on the provisions of the Child Care Act, 1991 and in particular on section 3. . .

141. The plaintiffs also point to the extended powers given to a health board in relation to care orders and supervision orders, although they are not bringing these proceedings based on those provisions. . .”

142. The conclusions of the learned High Court judge were as follows:

143. Against the said judgment and order of the High Court the plaintiff has appealed.

144. The grounds of appeal were as follows:

145. Relevant articles of the Constitution of Ireland and statutes were referred to by counsel. They include the following:

146. To illustrate the fact that the duty of the State under Article 40.3.2. is not unlimited or universal the learned High Court judge referred to Hanrahan v. Merck Sharp and Dohme [1988] ILRM 629. In particular, reference was made to p. 636 - where Henchy J. stated:

147. In relation to the rights and duties of the State to a child reference was also made to In re The Adoption (No. 2) Bill, 1987 , [1989] I.R. 656. In that case Finlay C.J. said at p. 663:

148. The PKU test is invasive of the child, albeit in a minor manner, and therefore may not be performed without consent. Primarily the matter of consent is for the parents of a child. In this case the parents have refused consent. Apparently six or seven sets of parents in Ireland refuse annually to consent to the PKU test being carried out on their child. In this case the plaintiff seeks an order of the court permitting it to carry out the test.

149. Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g., in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent it may be trespass against the person in civil law, a battery in criminal law, and a breach of the individual’s constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.

150. If the patient is a minor then consent may be given on their behalf by parents or guardians.”

151. The PKU test was sought to be given to the child by the plaintiff as part of a public health screening process. It was a routine process in a national screening programme. There was no particular reason why this child should be tested for PKU. There was no relevant family history. There were no circumstances which made it particularly apt for the child to have the test. The only form of the test offered was by way of taking blood from the heel of the child by way of a heel prick.

152. The plaintiff has no complaint about how the respondents take care of the child. They have taken appropriate care of all their children. In relation to another of their children they refused a PKU test and the child was taken into care pursuant to s. 18 of the Child Care Act, 1991 by the plaintiff so that the test could be administered and thereafter the child was returned to the care of the parents. Later, in a similar case, the Circuit Court held that s. 18 of the Child Care Act, 1991 could not be used for this purpose. That decision was not an issue in this case.

153. The PKU test is part of a health screening programme conducted throughout Ireland. Over the past thirty years most, if not all, countries in Western Europe have developed PKU screening, as has the United States of America. In no country is the test compulsory. To date neither the executive nor the legislature in Ireland has sought to make the test compulsory. The situation has been that there is a scheme and parents have been advised to consent to the test but they may refuse.

154. Under the Constitution the State recognises the family as the natural primary and fundamental unit group of society: Article 41.1.1, Constitution of Ireland. Further, the State guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State: Article 41.1.2, Constitution of Ireland. Thus, the family is the basic unit in our society and in accordance with the Constitution the State will protect it. The family in the context of Article 41 of the Constitution is the family founded on the institution of marriage.

155. The fact that the family is the fundamental unit group of society is a constitutional principle. Whatever historical origin or origins may be given for this principle it is a principle of the Constitution. In this case the family is one recognised and protected by the Constitution. The responsibility and authority of the family is exercised by the defendants. The child is a member of the family and has the benefit of being a part of that unit. The child is the responsibility of the parents. The rights of the parents in exercising their responsibility are not absolute; the child has personal constitutional rights. The child has rights both as part of the unit of the family and as an individual. Legislation has long recognised the paramountcy of the welfare of the child.

156. In previous cases a balance has been sought between the different rights and interests in cases involving parents and children. Initially cases were more protective of parental authority and the family in all but very exceptional cases. However, in recent times the child’s rights have been acknowledged more fully. It is settled law that the courts have a constitutional jurisdiction to intervene to protect the constitutional rights of a child. The courts will protect such rights whether legislation exists or not. In this case the issue is whether the court should apply constitutional principles and intervene to override the refusal of the parents to give consent to the PKU test.

157. The constitutional principles applicable are those to be found in Article 40.1, Article 41 and Article 42.5 of the Constitution of Ireland. These should be construed harmoniously. Thus, the child has personal rights: Article 40.1 of the Constitution of Ireland. The State has a duty to respect, and, as far as practicable, by its laws to defend and vindicate these rights. The State has a duty to vindicate the life and person of the child. Thus, the Guardianship of Infants Act, 1964 and the Child Care Act, 1991 advanced the concept of the welfare of the child as the first and paramount consideration.

158. However, the legislation and the rights of the child have to be construed in accordance with Article 41 which places the family at the centre of the child’s life and as the core unit of society. The language of Article 41 (set out previously) is clear and strong. The family is the fundamental unit group of society and the State (which includes the courts) guarantee to protect the family in its constitution and authority.

159. Article 42.5 envisages, in exceptional cases, where parents fail in their duty to the child, that the State as guardian of the common good shall by appropriate means endeavour to supply the place of the parents, but this is subject to the rights of the child. It is clear that under Article 42.5 the State is the default parent and not the super parent.

160. The Constitution clearly envisages the common good requiring the State to take the place of parents where they for physical or moral reasons fail in their duty towards their children. When taking this approach due regard must be given to the right of the child to its family. However, the child at all times retains his or her personal rights also.

161. O’Higgins C.J. in the Supreme Court pointed out that a child having been born has the right to be fed and to live, to be reared and educated, and to have the opportunity of working and realising his or her full personality and dignity as a human being, and that these rights must equally be protected and vindicated by the State. While normally these duties would be carried out by the parents, in special circumstances the State takes on the obligation. Walsh and Henchy JJ. made similar observations. The vindication by the State of a child’s constitutional rights has been further elaborated upon by the Supreme Court in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656 and M.F. v. Superintendent Ballymun Garda Station [1991] I.R. 189 . Having regard to the principles enunciated in these cases, I would take the view that where there is a child with very special needs which cannot be provided by the parents or guardian there is a constitutional obligation on the State under Article 42, s. 5 of the Constitution to cater for those needs in order to vindicate the constitutional rights of the child. It is not necessary for me to determine how absolute that duty is; conceivably there may be very exceptional circumstances where there is some quite exceptional need of the child which the State cannot be expected even under the Constitution to provide. In this connection The State (C.) v. Frawley [1976] I.R. 365 was relied on by counsel for the State. But it would seem to me that on the balance of probabilities the provision of such necessary accommodation, arrangements and services by the State as might meet the necessary requirements of this applicant is not so impractical or so prohibitively expensive as would come within any notional limit on the State’s constitutional obligations. There may be differences of opinion among the experts as to the level of staffing arrangements which would be required, even on a temporary basis, for the proper care of F.N. but I am not convinced at present that even the more extreme view taken by Doctor Byrne as to staff ratio is prohibitively expensive. He has given evidence that similar facilities are available in Canada and other countries. I would have thought that in considering questions of expense and practicality, the State would have regard not merely to the immediate cost but to a possible long term saving of cost if the special treatment of recalcitrant children led in the long term to a reduction of crime and drug abuse. But these are obviously to some extent areas of policy. I advert to them merely to indicate why it is not self-evident to me that the more elaborate requirements suggested by Doctor Byrne fall outside the ambit of any constitutional duty owed by the State.

162. In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as soon as reasonably practicable, either by use of s. 58, sub-s. 4 of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the applicant.”

163. It is important to note that in that case there was no issue as to parental responsibility. The child was effectively an orphan in the care of the State.

164. The circumstances of this case include parental responsibility as a factor. The parents have decided not to have the child receive the PKU test in the form offered by the plaintiff. That decision has to be balanced against the authority of the Health Board and its responsibility, with due regard to the child’s rights. Essentially at issue is the balance of responsibility between parental rights, the Health Board and the child’s rights as a member of a family and as a person.

165. The involvement of a Health Board in the care of a child in a family is a sensitive matter. In this case it was submitted that the plaintiff did not wish to be intrusive. However, it has a duty to the children in its area. In addition, the plaintiff is concerned that it would have a liability. The plaintiff is a statutory body given a statutory responsibility for the welfare of children in its area and potentially a liability for failing to insure the welfare of the child.

166. The screening test in issue is not a scheme established by statute. The Oireachtas has not decided that every child in the country should have this test. Thus this case does not require a decision as to the constitutionality of any legislation or the balancing of the common good against individual or group rights in relation to that legislation. The fact that there is no legislation seeking to make the PKU test compulsory is a relevant factor. If there was such legislation it would be presumed to be constitutional yet open to review. Any such review would involve consideration of the common good while analysing the rights of the family and the child. The fact that there is no legislation requiring that children be given the PKU test is a factor of importance in that as a consequence the analysis leading to a decision commences not from such legislation but from the Constitution. Any comment as to what the situation would be if there was legislation governing the PKU test could only be speculative. Legislation is not an issue in this case. Nor is it appropriate to indicate whether or not the Oireachtas should legislate.

167. The screening test is available through health boards. Health boards have a function to promote the welfare of children in their area who are not receiving adequate care and protection. In this function the board must have regard to the welfare of the child as the first and paramount consideration, to the rights and duties of the parents, to the wishes of the child (having regard to his age and understanding), and to the principle that it is generally in the best interests of a child to be brought up in his own family: s. 3, Child Care Act, 1991. Thus the matter is a balancing of the rights and responsibilities of the family, the child and the Health Board.

168. There is no precedent in our common law jurisprudence which is on all fours with this case. Some case law in the United Kingdom was opened, but none is apt. In Re: C (a child HIV test ) [1999] 3 F.C.R. 289 the circumstances were very different. There caring parents had decided not to have a baby, whose mother was HIV positive and who was breast feeding the child, tested for HIV. Breast feeding was known to be high risk for HIV transmission. The factors were such that a decision in the case would not have the effect of making such a test mandatory for all babies. The child was in a situation which was life threatening. That decision is distinguishable from the circumstances of this case.

169. I do not find any of the cases cited from other jurisdictions helpful. They raise different issues. None of them relate to the type of circumstances herein, i.e. a screening test such as the PKU test. This may itself be informative. Cases from other jurisdictions were not helpful also as they do not apply the constitutional principles applicable here. Further, many of the cases referred to decisions relating to persons in wardship, which is not the situation here.

170. During the submissions before the court, counsel informed the court that the basis for the refusal to let the child have the blood screening test was not religious. Thus this is not a case where there is a faith factor or a balancing of a religious element.

171. The decision in this case requires the correct constitutional balance between the responsibility of the parents and the health board and the constitutional rights (family and personal) of the child. The fundamental principles by which the community wishes to live are to be found in the Constitution. The Constitution clearly places the family as the fundamental unit of the State. The family is the decision maker for family matters - both for the unit and for the individuals in the family. Responsibility rests fundamentally with the family. The people have chosen to live in a society where parents make decisions concerning the welfare of their children and the State intervenes only in exceptional circumstances. Responsibility for children rests with their parents except in exceptional circumstances. In assessing whether State intervention is necessary the fundamental principle is that the welfare of the child is paramount. However, part of the analysis of the welfare of the child is the wider picture of the place of the child in the family; his or her right to be part of that unit. In such a unit the dynamics of relationships are sensitive and important and should be upheld when possible as it is usually to a child’s benefit to be part of the family unit.

172. In seeking the balance to be achieved between the child’s rights within and to his family, and the family (as an institution) rights, and the parents’ right to exercise their responsibility for the child, and the child’s personal constitutional rights, the threshold will depend on the circumstances of the case. Thus, if the child’s life is in immediate danger (e.g. needing an operation) then there is a heavy weight to be put on the child’s personal rights superseding family and parental considerations.

173. In assessing the balance to be achieved in this case it is an important fact that there is no family history which makes it more than the most remote possibility that the child could have the illness to be tested for. His siblings have been tested and the result is negative. It would be relevant if the child had a real or significant chance of having the disease being screened. On the facts of this case this is not likely. Statistics are not the basis on which any decision will rest. Every child is cherished under the Constitution, cherished in accordance with the principles of the Constitution. However, perhaps statistics would illustrate how a hard case has the potential to make bad law.

174. In assessing the balance to be achieved in this case it is relevant to consider the threshold which it would set for this and other medical tests and for matters such as inoculations. If the responsibility for making this decision is transferred from the parents to the State then it would herald in a new era where there would be considerably more State intervention and decision making for children than has occurred to date. Every day, all over the State, parents make decisions relating to the welfare, including physical, of their children. Having received information and advice they make a decision. It may not be the decision advised by the doctor (or teacher, or social worker, or psychologist, or priest or other expert) but it is the decision made, usually responsibly, by parents and is abided by as being in the child’s best interest. Having been given the information and advice, responsibility remains with parents to make a decision for their child. The parents are responsible and liability rests with them as to the child’s welfare.

175. In exceptional circumstances - such as where a child needs acute medical or surgical care - the expert may be part of an application for a court order to protect the welfare of the child by seeking a judicial decision different from that of the parents. This arises only in exceptional circumstances. Even if acute medical care is advised by some medical experts and the parents consider that the responsible decision may be to refuse such care it may be within the range of responsible decisions. This may occur where a child is suffering a terminal illness and parents may decide responsibly that he or she has suffered enough medical intervention and should receive only palliative care.

176. I use these examples to illustrate the issues raised by the parties in this case and the effect any decision will have on family life throughout the community. Although the case relates to one child in one family and it is decided on its facts, there is no doubt that through this decision a precedent will have been established.

177. If the court were to order that the child receive the screening test then it would effectively mean that the test was compulsory for children. This would mean that the court, without the benefit of the kind of analysis and preliminary work which would precede legislation, would be making a policy decision for all children that this test be compulsory. Such an outcome would be at odds with the approach previously taken in Ireland that medical tests or procedures not be compulsory. There is a very heavy burden on the plaintiffs to establish why the previous approach should be altered, why the courts should make a policy decision in relation to a medical procedure for all children, and to establish why the courts should make a decision which, if it were to be made by the State, would more appropriately be made by the legislature.

178. There is a constitutional presumption that the welfare of a child is to be found within the family unless there are compelling reasons why that cannot be achieved or unless there are exceptional circumstances where parents have failed to provide education for the child: In re J.H. (an infant) [1985] I.R. 375. It is not suggested that the child be removed from the defendants in this case; the child will remain within the family no matter what the decision. However, any intervention by the courts in the delicate filigree of relationships within the family has profound effects.

179. A decision in this case involves an application of constitutional principles. It is a weighing

180. The test to be applied is not the simple medical test. Medical opinion before the court was unanimous as to the appropriateness of the PKU screening test. However, the test for the court is not the simple test as to whether the benefit of the PKU test outweighs the medical risk. If that were the test, in my view, the decision would be clear and in favour of ordering the PKU test. However, that is not the test to be applied to the case.

181. Nor is the test to be applied that of seeking out what would be the decision of responsible parents. The child is not an orphan or a ward of court. Thus the test is not that which would be applied if the child was a ward of court. The entire circumstances relating to the child have to be taken into consideration. They include the parental decisions.

182. A constitutional test has to be applied. In this case the test involves the weighing of all the circumstances, including parental responsibility, parental decisions, the child’s personal rights, and the rights of all persons involved to and in the family, to determine in these circumstances what is in the best interests of the child. A factor in these circumstances is the medical advice which will carry weight but which must be balanced (in this case) against the parental decision and the rights of the child and the rights of all to and in the family to achieve a decision in the child’s best interests.

183. It is complex and difficult to weight these different factors one against the other. First, they are of a different essence - a medical analysis on the one hand and social, emotional, constitutional and legal considerations on the other hand - often in juxtaposition. Secondly, they are all profoundly important factors. There is no easy weighing of the scales. The ultimate decision is one to be grounded on fundamental constitutional principles.

184. The Constitution recognises the family as the fundamental unit group of our society. Even when, as here, it is alleged that parents have failed in their duty to the child and the State endeavours to supply the place of parents it does so with due regard to the rights of the child. The rights of the child encompass the panoply of constitutional rights which include personal rights to life and bodily integrity. However, in addition the child has a right to and in his family. When assessing the welfare of a child - the fundamental concept when analysing the position of a child - complex social, political, educational and health rights of the child in and to his family are important. The bonds which bind a child in a family are strong. However, any intervention by the courts in the delicate filigree of relationships within the family has profound effects. The State (which includes the legislative, the executive and the courts) should not intervene so as to weaken or threaten these bonds unless there are exceptional circumstances. Exceptional circumstances will depend on the facts of a case; they include an immediate threat to the health or life of the child.

185. The principle behind excluding the State from decision making in relation to the child where parents are exercising their responsibilities and duties is a constitutional principle. It is one of the fundamental principles of the Constitution. The Constitution describes a society which aspires to a community of families. Families are to be protected. This means that State interventions are limited.

186. In relation to the child, the fundamental principle is the welfare of the child. The welfare of the child includes religious, moral, intellectual, physical and social welfare. These elements must be analysed in light of the facts relating to the child and the family in issue. The court has a constitutional duty to protect the life or health of the child from serious threat and the court has a constitutional duty to protect the family. A just and constitutional balance has to be sought.

187. If the court were to order the PKU test be given in this case it would effectively mean that the PKU test was compulsory throughout Ireland. This would flow from the fact that the medical risks are classed as minimal for all and the benefit to those cases detected and treated substantial. Such a test would be of universal application. It would mean effectively that parents have no right to refuse. Such a decision would have a far reaching effect. On the one hand it would effectively turn into law something which is at present only departmental policy, a course of action much more appropriately a matter for the executive and legislature. Also, it would establish a very low threshold for court intervention in future cases in relation to children.

188. The test is whether in all the circumstances it would be constitutional for the court to order that the PKU test be made. As to whether it would be constitutional involves the weighing in the balance of a number of competing constitutional rights and principles.

189. In light of the circumstances of this case I would not interfere with the parental decision. The plaintiff has no complaint about how the respondents take care of the child, the plaintiff raises only the issue of the PKU test in relation to which the defendants have made the decision to refuse the test for their son in the form offered. They have been fully informed of the medical view but they have taken a decision wider than a purely medical decision and have included factors other than concerns of the physicians. In reaching this opinion I am not in the position of the parents nor am I exercising a parens patriae jurisdiction. I bear in mind the relevant constitutional rights and principles. These include: the right of the child to his fundamental rights; the fact that the paramount consideration is the welfare of the child, which extends wider than the single medical issue; the rights of the child in and to his family; the rights and duties of the parents to make and bear responsible decisions and their liability thereto; the rights of all the individuals to their family in its strengths and weaknesses; and the duty of the Health Board under the Act of 1991 in relation to the child.

190. Balancing these principles and rights, in the circumstances of the case, I am of the opinion that the court should not intervene to order the screening test on the child.

191. The test to determine when there should be an intervention by the courts is established in light of the Constitution, especially Article 40.3, 41 and Article 42.5. Article 42.5 states:

192. The question is whether the defendants, while exercising their responsibility and duty to their child under the Constitution (Article 41), failed in their duty to their child, so that the child’s constitutional rights (including the right to life and to bodily integrity) were or are likely to be infringed. In analysing this the child’s rights to and in his family is a factor. Consideration has to be given as to whether the State (whether it be a health board or other institution of the State) as guardian of the common good should by appropriate means endeavour to supply the place of the parents to ensure that the welfare of the child is the paramount consideration, but always with due regard to the natural and imprescriptible rights of the child including his rights in and to his family.

193. The decision as to the PKU test is one of very, very many which parents make about their children every day. These decisions, medical and otherwise, are usually not challenged by anyone even if they are not in accordance with specific expert advice. It is only in exceptional circumstances that courts have intervened to protect the child to vindicate the child’s constitutional rights. The court will only intervene, and make an order contrary to the parents’ decisions, and consent to procedures for the child, in exceptional circumstances. An example of such circumstances in relation to medical matters may be a surgical or medical procedure in relation to an imminent threat to life or serious injury.

194. Applying that test to this case I am of the opinion that it has not been established that this is an exceptional case. The defendants exercised their parental responsibility and duty to the child. It has not been established that they have failed in their duty to the child so that the child’s constitutional rights have been or are likely to be infringed, in order that the courts, as guardian of the common good, should intervene to order the taking of the PKU test by way of the blood test as suggested, having regard to the paramountcy of the welfare of the child but with due regard to the rights of the child, including all his constitutional rights.

195. The decision is that of the defendants, the parents. The responsibility and liability rests with the parents. Once the plaintiff fully informed the defendants about the tests, their responsibility and liability ceased.

196. There are other methods of screening for the diseases in issue. However, the evidence was that testing by way of hair or urine is not as reliable as by blood. The defendants have indicated that they would make hair and/or urine samples available for screening. However, the department having provided an effective scheme, the plaintiff has no obligation to set up further schemes every time a family finds a national scheme unacceptable.

197. In my opinion the order of the High Court was correct. For the reasons given, I would dismiss the appeal.

198. The history of this matter and the comprehensive arguments of Counsel are faithfully recorded in the judgment of the Chief Justice. There is nothing which I could add to that judgment and nothing would be gained by repeating it. I will gladly adopt the recital of facts provided by the Chief Justice and his careful analysis of the arguments.

199. The determination of the nature and extent of the rights and duties as between parents and their child has involved a number of problems. The nature and extent of the obligations owed by the State to a child and the circumstances in which those obligations arise create even greater difficulties. However it is the resolution of potential conflict between the duties of parents and the duties of the State which causes the most delicate problems. In the present case may be explored from different aspects. First, there is the medical or scientific area by reference to which the merits and defects (if any) of the PKU test maybe determined by reference to objective scientific criteria. Secondly, there is the area of moral authority recognised by Articles 41 and 42 of the Constitution as being vested in the Family and parents and identified as rights which are inalienable and imprescriptible. Thirdly, there is the area of potential conflict between the duty of the Courts to vindicate the constitutional rights of individuals and the rights, duties and interests of others in respect of these rights.

200. No problem arises in the medical or scientific area. The PKU test is used to diagnose with confidence the presence or absence of one or more metabolic conditions any one of which may cause either mental handicap or life threatening illness. There is then the comforting knowledge that these conditions, if discovered early in the life of the child, are susceptible to simple and effective treatment. The carrying out of the test involves an invasive procedure for which the consent of parents is required. However, what this procedure involves is, both metaphorically and literally, a pin prick. No evidence was produced and no suggestion made that there is any medical or scientific view which envisages any possible danger to a patient from the PKU test. In my view it is beyond debate that the performance of a PKU test, viewed in medical terms, is unquestionably in the best interests of the infant tested.

201. The moral issue is less clear. There are no provisions of the Constitution cognisable by the Courts expressly requiring or permitting the State to provide medical services or social welfare of any kind for any of its citizens. In G .v. An Bord Uchtala [1980] IR 32 this Court, in considering the principles applicable in granting an order authorising the Adoption Board to dispense with a mother’s consent to an order of adoption under the Adoption Act, 1952, examined the nature and extent of the constitutional rights of the infant. At page 55 of the report under the heading “The Child's Rights” O’Higgins CJ said:-

202. The effect of that sub-article can be found in the decision of Geoghegan J - then a Judge of the High Court - in FN .v. The Minister for Education & Ors [1995] 1 IR 409. In that case the applicant was a boy of 12 years of age whose mother was dead and his father unknown. Despite their best endeavours his foster parents were unable to control him. It was clear on the medical evidence that the applicant was in need of special treatment, attention and education and more particularly that this could not be effectively provided save in a secure accommodation where he would be contained and detained. Mr Justice Geoghegan held that the applicant had the right to the facilities which he required and the State the corresponding constitutional duty to provide them.

203. In the present case the issue is not whether the State is bound to make available the PKU test for any special category of children. That service is already provided for all. The moral and constitutional dilemma is whether the parents having declined to avail of the service the State, either because of its obligation to vindicate the personal rights of the child involved or its default obligations under Article 42.5 is bound to ensure that the available service is indeed availed of. I am firmly of the view that it is not.

204. I confess that I would be impatient with the attitude of the Defendants/Respondents. I am alarmed by the real possibility (happily not a probability) that the young boy may be a victim of one of the metabolic conditions which the PKU test could so easily detect and that, because of the absence of detection and treatment, he could suffer appalling consequences. In that event at least the North Western Health Board will have the comfort of knowing that they took every possible step to secure the welfare of the infant. The only solace for myself and those Judges taking a view similar to mine would be that we interpreted the Constitution and the law to the best of our fallible ability.

205. In England the Court of Appeal in Re T (a minor) [1997] 1 AER 906 was faced with the issue whether the Court should override the refusal of a mother to provide her consent to a child undergoing a liver transplant operation which was essential to its continued survival. Waite LJ, having pointed out that all cases depend on their own facts to such degree as to render generalisations impracticable did go on to construct a scale one end of which he described as being “the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind that is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind”. He made it clear that in those circumstances “it is the duty of the judge to allow the courts own opinion to prevail in the perceived paramount interests of the child concerned....”. In fact the Court of Appeal refused to provide the consent sought having regard to the operations which the infant had previously undergone and the necessary dependency of the infant on the support of its parents if the liver transplant operation were authorised. Another decision of the Family Division of the High Court in England was cited in support of the appeal herein, namely, in Re C [1999] Fam Div 289. In that case a local authority sought, in accordance with the legislation in that behalf, an order of the Court overriding the wishes of the mother permitting a six months old baby to have a HIV test. The importance and urgency of the test was that the mother herself was HIV positive and the baby had been breast fed. There was a factual similarity between that case and the present in as much as both tests involved the extraction of a blood sample. Unhappily the relevant test for HIV, Polymerase Chain Reaction, (PCR) may not be quite as accurate or reliable as the PKU test and, more particularly, the diagnosis does not guarantee effective treatment but merely better “focused advice on the best course of action to take both while [the child] remains asymptomatic and if she develops the symptoms of disease”. However the two factors which appeared to have weighed most heavily with the trial Judge was first, that any intervention directed by the Court would require the active commitment on the part of the parents in the long term and, secondly, that the parents who had researched intensely the problems of HIV were “far from lone voices in their dissent from mainstream opinion ”. Nevertheless Wilson J held that the performance of the PCR test was overwhelmingly in the best interest of the child and that that was the appropriate criterion.

206. It appears to be clearly established in the United Kingdom that where a Court is called upon to make a decision (whether pursuant to statute or their inherent jurisdiction) as to whether a minor should undergo surgery or any medical procedure “...the question for the Court was whether it was in the best interests of the child that she should have the operation and not whether the wishes of the parents should be respected” (see Re T (above) page 914). A similar authority is exercised in this jurisdiction where, but only where, the applicant is a Ward of Court. In that event the prime and paramount consideration of the Court is the best interest of the ward and, although the views of the committee and family of the ward are factors which may be taken into consideration, they cannot prevail over the Court’s views as to what is in the best interests of the ward (see In the Matter of a Ward of Court (Withholding Medical Treatment) No 2 [1996] 2 IR 79).

207. The position is different in the present case where the Court is invited, to exercise, not the jurisdiction conferred upon it by particular legislation or in Wardship matters, but the power and duty of the State in a role which is clearly subsidiary to that of the parents. In relation to the Education of their children the relationship between the State and the family is clearly and expressly dealt with in Article 42. The corresponding rights and duties of the State in relation to matters of general medical welfare are unenumerated and ill defined but the subsidiarity of the State to the parents is clearly established. Clearly it would be incorrect to suggest that the State could or should intervene merely because by doing so it could advance significantly the material interests of a child. If such a crude test were permitted then children of less well off parents might be given readily in fosterage to others who, it could be demonstrated, had the capacity to advance the material and, even, moral welfare of the child.

208. The Thomistic philosophy - the influence of which on the Constitution has been so frequently recognised in the judgments and writings of Mr Justice Walsh - confers an autonomy on parents which is clearly reflected in these express terms of the Constitution which relegate the State to a subordinate and subsidiary role. The failure of the parental duty which would justify and compel intervention by the State must be exceptional indeed. It is possible to envisage misbehaviour or other activity on the part of parents which involves such a degree of neglect as to constitute abandonment of the child and all rights in respect of it. At the other extreme, lies the particular decision, made in good faith which could have disastrous results. In the present case the parents did not present a refusal to the proposed PKU test. Indeed they positively agreed to the test provided it could be carried out on hair or urine samples. The objection of the parents centres exclusively upon the invasion or puncture - as they see it - of the blood cells of the child. No reasoning based on any scientific view or any religious doctrine or practice was cited in support of this firmly stated objection. Nevertheless I do not accept that a particular ill advised decision made by parents (whose care and devotion generally to their child was not disputed) could be properly categorised as such a default by the parents of their moral and constitutional duty so as to bring into operation the supportive role of the State.

209. If the State had an obligation in the present case to substitute its judgment for that of the parents numerous applications would be made to the Courts to overrule decisions made by caring but misguided parents. Such a jurisprudence and particular decisions made under it would tend to damage the long term interests of the child by eroding the interest and dedication of the parents in the performance of their duties. In my view the subsidiary and supplemental powers of the State in relation to the welfare of children arises only where either the general conduct or circumstances of the parents is such as to constitute a virtual abdication of their responsibilities or alternatively the disastrous consequences of a particular parental decision are so immediate and inevitable as to demand intervention and perhaps call into question either the basic competence or devotion of the parents.

210. In my view the present case is not one in which the Courts should entertain the application for consent. Accordingly I would dismiss the appeal and affirm the judgment of the High Court.

211. The facts and circumstances of this case as well as the arguments of the parties have been comprehensively summarised in the judgment of the Chief Justice. I happily accept his summary of the essential elements of the case which renders it unnecessary to repeat them in this judgment except for the purpose of placing matters in context.

212. In seeking a mandatory Order from the High Court, and on appeal, from this Court, requiring the Defendants to furnish their consent to the execution of a P.K.U. test, the fundamental argument of the Plaintiffs is that the Court has an inherent jurisdiction derived from the Constitution to grant such an order against the wishes of the parents where it is in the best interest of the child to do so. This in turn raises issues concerning a potential conflict between the constitutional status of the “Family” as a “moral institution” in society and the ambit of the constitutional duty of the State to defend and vindicate the personal rights of citizens in particular children.

213. The issues arise from a decision by the Defendants to refuse to consent to their son undergoing a P.K.U. test. This is a simple pinprick test where a tiny sample of blood is taken from an infant which will permit a diagnoses as to the presence or absence of one or more metabolic conditions. Any one of these conditions will sooner or later cause either mental handicap or a serious life threatening illness. Should the presence of any of these conditions be diagnosed they are readily susceptible to treatment which will prevent the onset of such serious adverse consequences. The P.K.U. test is a screening process for the benefit of the individual child. On the evidence, the risk that any given child may have one of the conditions in question is a possibility rather than a probability, or to put it conversely, as a matter of probability the child in question does not have any of these conditions. The Defendants say that they are in principle against any kind of invasive procedure which is how they regard the P.K.U. test, which involves a tiny breaking of the skin for the purpose of taking a small sample of blood. On the other hand it has been objectively established that the P.K.U. test, if it can be characterised as invasive at all, is of a minimalist nature with no meaningful adverse risks or consequences for the infant. On the contrary in the case of a positive result it has enormous benefits for the infant who can, with appropriate treatment or therapy be completely protected from potentially disastrous consequences. If the result is negative it provides confidence and reassurance to the family. For these reasons the Plaintiffs say that the Defendants should not be permitted to withhold their consent in the interest of vindicating the rights of the infant. At one stage in the proceedings it was asserted, and no more than that, that the Defendant’s objection was based on religious grounds. This has not been seriously pursued in the proceedings. It seems to me that the objection of the Defendants can be properly described as a prejudice against this type of test which they choose to object to as invasive and for which objection no rational basis has been demonstrated. Their standing as otherwise responsible caring parents has not been called in question. They have made their own judgment in the interests of the child as they see it and, it has to be said, in the context where there is a probability that the child does not have any of the metabolic conditions in questions.

214. If this court was exercising a parens patriae jurisdiction and stood in loco parentis to the child such as would arise if he was a ward of Court then the Court would be free to decide whether the child should be subjected to a P.K.U. test on the basis of what a prudent and responsible parent would do in the interest of the child. Since the Court does not exercise such a jurisdiction in this case, this approach is not open to it.

215. A number of judicial decisions from other common law jurisdictions, notably England and Wales, were relied on by the parties and in particular by the Plaintiffs. While these are illustrative how these jurisdictions have wrestled with and resolved complex problems concerning medical treatment or medical intervention in the case of minors, often against the wishes of parents, the Courts in those cases were exercising a jurisdiction different to that exercised by our Courts whose jurisdiction in this particular case is governed by the constitutional provisions referred to below. They would certainly be more in point if this Court was exercising a wardship type jurisdiction which it is not. Moreover, those cases tend to turn on their particular facts none of which appear to me to be analogous to this case concerning as it does the refusal of the parents to submit their child to a medical screening process.

216. As I have indicated above the fundamental question is a constitutional one as to whether the parents can be compelled to give their consent to the P.K.U. test on the grounds that vindication of the rights of the child require that their refusal be overridden by the State.

217. The Articles of the Constitution of Ireland relied upon by Counsel include the following: -

218. Article 41.1, under the heading “The Family”:

219. Article 42.1 under the heading “Education”,

220. The Constitution and in particular Article 41 reflects a shared value of society concerning the status of the ‘Family’ in the social order. It declares that the State recognises the family as a natural primary and fundamental unit in society and in particular as a distinct moral institution possessing rights superior and anterior to positive law.

221. Article 41.2 confers on State the duty of protecting the Family in its constitution and authority. I do not think it is necessary, having regard to the nature of the issues in this case, to consider the philosophy which underlies the provisions of the Constitution on the family, the terms of the Constitution being sufficiently explicit in themselves for the purposes of addressing those issues. Suffice it to say that the Constitution accords it a special status and protection, which I might add is not wholly unique. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948, having recited in its preamble its recognition “ of the inherent dignity and of the equal and inalienable rights of all members of the human family ” (in its broadest sense) acknowledges the duty of Member States to secure the rights and freedoms recognised in the Charter which includes, at Article 16 (3), “ The family is the natural and fundamental group unit of society and is entitled to protection by society and the State .” The Constitution of Germany (1949) recognises the Family as being under the special protection of the State (Article 6) as does Article 21 of the Constitution of Greece (1975) to mention two states of European Union.

222. The family also enjoys particular protection under the United States constitution. In

223. Article 41 of the Constitution in recognising the family as a moral institution possessing inalienable and imprescriptible rights, does not purport to establish the family as an institution but recognises its inherent status as such with rights which are “ antecedent and superior to all positive law ”. In doing so it reflects, as I have mentioned, a shared value of society and places it within, what Finlay, C.J. described in Webb -v- Ireland [1988] IR 353 at 383 , as “... the framework of the society sought to be created and sought to be protected by the Constitution ...”.

224. One of the inherent objects of the Constitution is the protection of liberties. Article 41.2. in providing that “ The State, therefore, guarantees to protect the Family in its constitution and authority ...” provides a guarantee for the liberty of the family to function as an autonomous moral institution within society and, in the context of this case, protects its authority from being compromised in a manner which would arbitrarily undermine the liberty so guaranteed.

225. I refer to this citation merely as illustrative of the fact that the status and autonomy of the family is one which in a democratic constitutional order may be the subject of guarantees protecting its liberty and autonomy as a fundamental unit in society. The terms of Article 41 of the Constitution are more explicit in that regard than the Constitution of the United States. As Walsh, J. stated in McGee -v- Attorney General [1973] I.R. 284 at 310 “ the individual has natural and human rights over which the State has no authority; and the family as the natural primary and fundamental unit group of society, has rights as such which the State cannot control .”

226. I think it is well established in our case law that the authority and autonomy explicitly recognised by the Constitution as residing in the family as an institution in our society means that the parents of children have primary responsibility for the upbringing and welfare generally of their children. When exercising their authority in that regard they take precedence over the State and its institutions. In this respect I agree with the observation of the Chief Justice that the family is endowed with an authority which the Constitution recognises as being superior even to the authority of the State itself.

227. That is not to say that the authority of parents is absolute or that they are immune from State intervention in all circumstances when exercising that authority. Walsh J., in the passage immediately following the citation from his judgment above in McGee -v- Attorney General , stated “ However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of the society ... The power of the State to act for the protection of common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of been reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or neglect the common good, or the protection or enforcements of the rights of individual citizens ”.

228. A general conclusion can be drawn from the foregoing, namely that the family as a moral institution enjoys certain liberties under the Constitution which protect it from undue interference by the State whereas the State may intervene in exceptional circumstances in the interest of the common good or where the parents have failed for physical or moral reasons in their duty towards their children. I do not see anything novel in these conclusions. These matters have been well established in our case law interpreting the relevant provisions of the Constitution. In Ryan-v-The Attorney General [1965] IR 294 the constitutionality of the Act of the Oireachtas providing for the fluoridation of the public water supply was challenged. The Act was challenged inter alia on the grounds that it offended against the rights of parents who objected to their children being subjected to such a regime. That Act represented a policy decision made by the Oireachtas in the exercise of its constitutional functions in the interest of public health. This was the essential context in which that case was decided. In acknowledging that constitutional rights may be regulated by the Oireachtas when the common good requires it Kenny, J. in the High Court judgment, (at p.312) stated “ When dealing with controversial social, economic and medical matters of which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there was no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation” While the Oireachtas, in the exercise of its constitutional functions, may in certain circumstances regulate or limit constitutional rights on concrete policy grounds with a view to reconciling them with the common good, this is not of course what has occurred here and not the issue which arises.

229. What is in issue here is whether the parents have acted in such a manner that exceptional circumstances arise by reason of a breach of duty on their part which would justify the State overriding their personal decision with regard to their child in this case. If the State had a duty or was entitled to override any decision of parents because it concluded, established or it was generally considered that that decision was not objectively the best decision in the interest of the child it would involve the State, and ultimately the Courts, in a sort of micro-management of the family. Parents with unorthodox or unpopular views or lifestyles with a consequential influence on their children might for that reason alone find themselves subject to intervention by the State or by one of the agencies of the State. Similar consequence could flow where a parental decision was simply considered unwise. That would give the State a general power of intervention and would risk introducing a method of social control in which the State or its agencies would be substituted for the family. That would be a infringement of liberties guaranteed to the family. Decisions which are sometimes taken by parents concerning their children may be a source of discomfort or even distress to the rational and objective bystander, but it seems to me that there must be something exceptional arising from a failure of duty, as stated by this Court in The Adoption (No. 2) Bill 1987 (cited above), before the State can intervene in the interest of the individual child.

230. It would be impossible and undesirable to seek to define in one neat rule or formula all the circumstances in which the State might intervene in the interests of the child against the express wishes of the parent. It seems however to me that there must be some immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically morally or socially, deriving from an exceptional dereliction of duty on the part of parents to justify such an intervention.

231. In the present case the parents have refused to allow the child to undergo a medical screening test. It is a test which neither the Oireachtas nor the Executive have considered appropriate to make compulsory in the interests of the common good. The parents have made their own judgment. It is a judgement for which they have not been able to articulate a rational basis that would satisfy the objective observer as to its wisdom. From an objective point of view it is manifestly unwise. However it is a judgement that has been exercised on the basis of first of all their objection in principle to what they regard as an invasive procedure and secondly in the context of a child that is at least ostensibly healthy and, on the evidence, is, as a matter of probability, free from any of the conditions which the test is designed to disclose. Unwise and disturbing the decision as it may be I am satisfied that it is a decision which they had the liberty to take and that it is not a case in which there has been such an abdication of responsibility, moral or otherwise as would justify the State’s view being substituted for that of the parents.

232. I would therefore dismiss the appeal.

233. This is an appeal from the judgment and order of the High Court (McCracken J.) whereby he refused the Plaintiffs the relief they sought.

234. The case raises the question of whether a court can or should order that a child undergo a minimally invasive medical test despite the strong objection of his parents. As the learned Chief Justice has said, this question in turn raises issues of great significance, transcending the facts of the present case. The minimally invasive test, the PKU test, is, I am satisfied, a diagnostic test fairly capable of description as a medical examination or assessment. It is invasive in a degree which, though slight, would render its being carried out without consent or other lawful authority an assault. There could be no question under the law as it stands of an examination or assessment of this sort being carried out on an adult of sound mind without his or her consent. It is, at present, the invariable practice to seek the consent of the parents of the infants on whom the PKU test is carried out for their consent. This has been the practice for some thirty-five years. In these proceedings, however, the Health Board has taken up the position that this request for consent is a mere empty formula since the parents have no right to refuse to consent, and if they do so their decision in this regard can be overridden by the High Court.

235. If the Appellant Health Board is correct to this contention it will have established an entirely novel proposition and brought about a position in which a public authority can compel parents to subject a child to an invasive medical test It will thus be seen that the case raises issues of principle of a far reaching kind.

236. I gratefully adopt the thorough statement of the facts of this case contained in the judgment of the learned Chief Justice. I wish to emphasise certain aspects of the background to the case and of the proceedings themselves which seem to me to be of particular importance.

237. Firstly, the Appellant Health Board does not dispute that the Respondents are careful and responsible parents. This is of particular importance having regard to the terms of Article 40.3 (i) and (ii) and Article 42.5 of the Constitution . Moreover, Counsel for the Appellant Health Board stated in submissions that his client had “no complaint of any sort about these parents and no dispute at all with them” .

238. Secondly, though there is unanimity of medical opinion as to the desirability of the PKU test, no medical or other expert evidence was adduced to support the proposition that the test should be compulsory. Furthermore, the evidence established that the test is available on a very widespread basis in the United States, the United Kingdom and in Europe. It is not compulsory in any jurisdiction. No proceedings to enforce the test on the child of objecting parents have been taken in any country.

239. Thirdly, the background to and the motivation for the institution of these novel proceedings is significant. In paragraph 8 of the Affidavit of Dr. Eileen Naughton, sworn on behalf of the Appellants, she says:-

240. At paragraph 4 of the Affidavit of Dr. Caroline Mason, also sworn on behalf of the Appellants, she says:-

241. At paragraph 16 of the same Affidavit the Deponent says:-

242. Furthermore, Counsel for the Health Board on the hearing of this appeal stated that his clients were concerned that they might be exposed to liability if they did not seek to administer the test on a mandatory basis.

243. Fourthly, the evidence establishes that the test has been available in Ireland since 1966, shortly after its development in the United States. Until the institution of certain District Court proceedings, described below, by the present Appellant in 1997 or 1998, no attempt was made by any Health Board or public authority to administer the test on a compulsory basis. No other test or prophylaxis for general use has been sought to be administered on this basis.

244. In 1990 the then Minister for Health established a working group on metabolic disorders to make recommendations in relation to the PKU test. Public Health professionals were dominant on this group. In relation to parents who declined the test they recommended as follows:-

245. Fifthly, at the hearing the Appellant Health Board expressly disavowed reliance on any statutory power to enforce the PKU test, resting their case solely on the Constitution. Yet it clearly emerges from the Plaintiffs principal Affidavit that the Health Board’s shift from a permissive to a coercive policy was rooted, not in any constitutional theory, but on a reading of the Child Care Act 1991. The Board does not now rely on this statute in this connection. It appears that the Act of 1991 is relied on as conferring a specific locus standi on the Health Board, but not for any other purpose. While there was some discussion of the hearing of the appeal of the parens patriae jurisdiction, Mr. Paul Gallagher S.C. in his reply for the Health Board expressly confined the basis of his case to the Constitution.

246. Sixthly, the Appellant Health Board has previously sought, successfully in at least one case, to administer the PKU test against the will of parents by making an application to the District Court under Section 18 of the Child Care Act, 1991. The text of the section is set out in the judgment of the learned Chief Justice. The section allows the District Court to make an order referred to as a “Care Order” which commits the child to the care of the Health Board for as long as he remains a child or for such period as the Court may determine. If such an order is made then, during its validity, the Health Board is entitled to consent “to any necessary medical or psychiatric examination, treatment or assessment with respect to the child”. It is further provided that such consent is sufficient authority for the carrying out of the examination or assessment in question. In the cases which the Health Board took in connection with the administration of the PKU test, they sought the Care Order only for an extremely short period of time to allow the test to be carried out.

247. After the Health Board had successfully obtained at least two such orders in the District Court, a couple other than the Respondents in the present case appealed the order made in respect of their child to the Circuit Court (His Honour Judge Deery). Their appeal was successful. On the hearing of this Court, Counsel for the Health Board conceded that the Section 18 procedure was inappropriate where the Board had “no complaint” against the parents.

248. I believe this was an appropriate concession and that the learned Circuit Judge was correct in his refusal of a Care Order for the purpose sought. In my view it is quite inappropriate to seek to invoke a District Court procedure, plainly envisaged for quite different circumstances, to enforce the PKU or a similar test, when the only jurisdiction claimed to do so is one deriving from a previously untested legal or constitutional theory.

249. Shortly after the Health Board were unsuccessful in the appeal before Judge Deery, they were confronted with the same problem again after the birth, at home, of a further child to the present Respondents. These proceedings were instituted when the Respondents refused to make the child available for the PKU test, as described in the Affidavits filed on behalf of both parties.

250. In the Statement of Claim filed by the Plaintiffs, they claimed the following relief:-

251. On the 10th July 2000 the Plaintiff issued a Notice of Motion for interlocutory relief. In this Motion the only substantive reliefs claimed were:-

252. The hearing in the High Court seems to have proceeded on the basis of the reliefs claimed in the Notice of Motion. However, on the hearing of this appeal, Counsel on behalf of the Health Board in the course of his reply stated that his clients were not now seeking any but declaratory relief i.e. the reliefs claimed in paragraphs (i) and (ii) of the prayer in the Statement of Claim.

253. It appears to me that the following observations can fairly be made on the basis of the undisputed evidence:-

254. No issue was taken by the Respondents with the proposition that the PKU test is undoubtedly in the best interests of the child, if those interests are to be determined medically, in an objectively reasonable fashion. It is expressly conceded by them that if the case were to be determined on the basis of what is considered medically advisable, or of what the vast majority of conscientious parents actually do, they would inevitably lose the case. The issue is quite different. It relates to whether a court may enforce on parents who are careful and conscientious a view of their child’s welfare which is rational but quite contrary to the parents sincerely held but non-rational beliefs. This question of welfare arises in the context of an invasive diagnostic test and not of an immediate and life threatening emergency.

255. I do not intend the term “non-rational” to be necessarily derogatory: many of mankind's dearest and most beneficent beliefs have been non-rational in the sense of being incapable of purely rational justification. So, of course, have some of its greatest and most maleficent illusions. Ant not infrequently these latter have assumed a cloak of scientific irrefutability.

256. In his judgment in this case, the learned Chief Justice mentions the well known American case of Buck v. Bell 274 US 200. I respectfully agree with all that he says. The case in my view is a chilling example of logic, rationality or utilitarianism taken to an extreme which subverts the essential human dignity of the people involved.

257. The author of this opinion was perhaps the greatest common law judge of the 20th century, and, in the opinion of Judge Richard Posner, the best read judge in the history of the United States Supreme Court. That such a person could hold and express these views emphasises the fact, now difficult to realise imaginatively, that in the 1920s and 1930s a belief in eugenics, and in sterilisation as a means of achieving the objects of eugenics, was widespread in circles which would have thought themselves advanced or progressive. These beliefs found advocates in the forefront of the medical and scientific communities, and did not want for legislative and judicial facilitators. It was the revelation of practices in Germany and Russia during and after the Second World War which destroyed the fashion.

258. There is, of course no comparison whatever between the practice Justice Holmes mandated and that in question here. The learned trial judge in this case also referred to vaccination and expressed the view that a stronger case could be made for compulsion in respect of some forms of it than for PKU. But vaccination is not akin to sterilisation. In any event the analogy to compulsory vaccination rests on the unexamined assumption that feeble mindedness begets crime. But Buck v. Bell occurs to, and disturbs, every lawyer who approaches the subject of compulsory medical examination or treatment, as it occurred to Counsel on both sides of this case. The lesson of it to my mind is that it is better to hesitate at the threshold of compulsion, even in its most benevolent form , than to adopt an easy but reductionist utilitarianism whose consequences may be unpredictable. Ample scope must be given to the fundamental values of human dignity, as well as those of positive logic. This, perhaps, is reflected in the citation from Denham J. set out later in this judgment, where, speaking of the free decision to consent or not to the medical treatment of an adult she says:-

259. The impossibility of dealing specifically with the infinitely varied reasons thrown up by individual cases underlies the general requirement that all recipients of medical examination or treatment must be volunteers. There are clearly exceptions to this, as in the case of infectious diseases , based on social need, and specifically identified by law.

260. But the least that the fundamental values require is that a proposed mandatory test such as that in question here should be justified in principle and not simply on the basis of a purely utilitarian rationale.

261. The Plaintiff is a statutory body and all of its powers are of statutory origin. They arise under a considerable number of Acts going back over half a century to 1947.

262. It is clear that the Child Care Act, 1991 must, in the absence of any challenge to its constitutionality, be presumed to be constitutional. It is equally clear that a child who is the subject of a Care Order under Section 4 of the Act is no longer a person for whom, for the purposes of consent to a medical examination, his parents are responsible. But the child at the centre of the present case is not the subject of a Care Order and is a person for whom his parents are responsible. That being so it is clearly the legislative policy that they cannot compelled by virtue of the Health Acts, or the Child Care Act, 1991, to submit the child for health examination or treatment. This may not exclude the possibility of another obligation to do so. But it does seem to be a clear indication of legislative policy on parental discretion, contained in an Act equally entitled to a presumption of constitutionality.

263. Though this provision creates an exception the general rule constituted by Section 4 of the 1953 Act, it appears to me to evidence the legislatures acknowledgement, in 1981, that the general position continued unaltered in relation to psychiatric treatment except in this respect.

264. The Health Acts 1947 and 1953 are the basis of a health service provided free of charge to many citizens. The 1947 Act repealed three Victorian Vaccination Acts passed between 1858 and 1868. The 1947 Act itself contained in Part III, Sections 21 to 28, provisions for a “mother and child service”. This included in Section 25 an obligation to present a child, unless certified exempt, for medical inspection. These provisions were themselves repealed by the 1953 Act which also contained in Section 4 the provisions quoted above.

265. The Bill which became the 1953 Act had been announced in a white paper published in July, 1952 and stating an intention:-

266. In the Memorandum to government on the 15th November, 1952 this change was prefigured as follows:-

267. Head 34 related to the compulsory treatment of congenital syphilis in infants. This was explained in a note as being required because “The parents of such children have not generally got a normal sense of responsibility towards their children”.

268. The Health Bill, 1952 as introduced contained the present Section 4(1) but not 4(2). This was introduced as an amendment at the Committee stage and passed after a debate marked by conspicuous, and indeed competitive, commitment to the principle of voluntarism.

269. While an historical approach to the construction of the Constitution, based on the state of law or public opinion at or near the time of its passing, is not primary or the only approach to construction, I do not believe that the pre-parliamentary or parliamentary history of the Act of 1953 is consistent to the smallest degree with the view that a citizen was, or intended to be, under any obligation to present himself or a child for whom he was responsible, for any medical diagnosis or treatment. On the contrary, the principle of voluntarism was carefully and specifically enshrined.

270. Accordingly, it appears to me that the principle of voluntarism in respect of medical treatment is plainly established in so far as public medical services are concerned. This extends to a patient himself or to a person making decisions as to medical treatment for another person for whom he is responsible.

271. The sole statutory exceptions, other than that quoted above, relate to infectious or communicable diseases.

272. This statutory position appears to reflect the position at common law, where consent is the basis of any lawful medical treatment. I would respectfully endorse what was said in this regard by Denham J. in re A Ward of Court (withholding medical treatment) No. 2 [1996] 2IR 79:-

273. It thus appears that, subject only to “a few rare exceptions” , all of which are specified by statute or well identified at common law, consent is required for medical treatment and treatment without such consent is a trespass, a battery, and a breach of constitutional rights. Denham J’s conclusion in relation to minors - that consent may be given on their behalf by parents or guardians - seems manifestly correct in the light of the constitutional provisions as to the family and education, considered below. There is admittedly no statutory provision which can assist the Appellants. Accordingly, the only basis on which relief is sought is a constitutional one. Specifically, they claim that the refusal of the Defendants to consent to the carrying out of the test is “a failure to vindicate the personal rights of the infant”.

274. The test is which is the subject of this litigation is the PKU test offered by the Plaintiffs. It is the refusal to consent to that test that the Plaintiffs complain of: they do not, for example, claim that the Defendants are obliged themselves to arrange to have the test carried out in the private sector. As their claim was originally formulated, they also sought an injunction restraining the Defendants from interfering with the carrying out of the test by them, and also an injunction requiring the Defendants to furnish their consent to the execution of the test.

275. It thus appears that all the reliefs claimed are directed at denying the Defendants their right not to consent to the execution of the PKU test by the Plaintiffs as Health Board; to compel them to consent to such execution; and to compel them to submit a person for whom they are responsible to the test.

276. In asserting their entitlement to such reliefs on constitutional grounds, it appears to me that the Plaintiffs are taking, or approaching, a position whose logical corollary is that Section 4 of the 1953 Act, or part of it, is unconstitutional. If they are successful, the Defendants will be compelled to present a person for whom they are responsible for treatment, the treatment being one which, they claim, is contrary to their religious beliefs. Moreover, the treatment for which they will be compelled to present their son is one provided as a service by the Health Board. This is the very situation that Section 4 of the Act was designed to avoid, by enshrining the notion of personal or parental consent. It is true that Section 4(1) of the 1953 Act limits itself to preventing the Health Acts from being read as imposing obligation of the kind specified on any person. The Plaintiffs contend that, accordingly, the provision is not inconsistent with such a person being under an obligation of the relevant kind by virtue of the Constitution. This is logically true, though I have no doubt that the possibility of a constitutional obligation to present one’s child for medical diagnosis against one’s wishes was not present to the mind of the legislature in 1953. Section 4 would make no sense otherwise.

277. It appears to me that this subsection, unlike the proceeding one, is not confined merely to preventing the Health Acts being read in a particular fashion but states plainly as a matter of law the person availing himself of service under the Acts shall not be under an obligation of the relevant kind. In the course of his letter of the 11th May, 2000 the first-named Defendant in explanation of the failure of his wife and himself to consent to the test said:-

278. The last sentence is a reference to the parents willingness to allow the infant’s urine or hair to be tested, which was unacceptable to the Health Board.

279. Accordingly, I consider it more than arguable that the case made on behalf of the Appellants is one involving as a logical corollary the proposition that subsection 4(2), at any rate, is repugnant to the Constitution. If this were so, it would have the consequence that the Plaintiffs would have had to join the Attorney General in their proceedings. This would in my view have been desirable, having regard to the general effect which the Plaintiffs plainly intend the result of the proceedings to have.

280. Despite this, I do not propose to decide the present case on the basis indicated. Firstly, we were not invited by the Respondents to do so. Secondly, their assertion of a religious motivation for refusal occurs only in correspondence and not in the subsequent affidavits and is of a somewhat vague nature. It was not one which the Plaintiffs were seriously challenged to rebut. It may however be central in another case.

281. The relevant Articles of the Constitution appear to be Article 40.3, Article 41.1, Article 42.1 and Article 42.5. The texts of these Articles are set in the judgment of the learned Chief Justice.

282. The only specifically constitutional claim in the Plaintiff’s proceedings is that contained at paragraph (ii) in the Statement of Claim:-

283. This, plainly, is a reference to the wording of Article 40.3.1 and 2. The first of these sub-articles is a guarantee by the State “in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of a citizen”. The following sub-article obliges the State to protect and vindicate certain rights in particular, again “by its laws”.

284. Accordingly, this formulation of the claim immediately confronts us with the salient feature that there is no legislation on this topic, other than that referred to above whose effect is to enshrine voluntarism and parental responsibility. Mr. O’Donnell submitted, and the learned trial judge agreed, that this a significant factor. I concur with this.

285. Where the State has legislated in the interest of vindicating and defending the rights of children, such legislation has fallen to be interpreted in the light of the provisions of the Constitution generally and of Articles 41 and 42 in particular. Thus, in Re J.H (An infant ) [1985] IR 375 there was a contest as to custody between the parents of a child and adopting parents. Pursuant to Section 3 of the Guardianship of Infants Act, 1964 the Court was obliged to-

286. In construing the Act Finlay C.J. held that:-

287. Finlay C.J. continued:-

288. If, in a custody dispute being decided in accordance with established statutory criteria the presumption described in the last extract exists, what of a situation there is no relevant statute at all?

289. I believe that, in such cases, even more obviously than in custody cases where there is a statutory framework, a presumption exists that the welfare of the child is to be found in the family exercising its authority as such. If this presumption applies in the construction of a statute which makes no express reference to the authority of the family, it must, a fortiori , apply where the contest is between the parents of the child and a stranger, in this case a statutory body, outside any statutory framework.

290. This seems to me to follow from the exceptionally strongly worded provisions of Articles 41 and 42 of the Constitution and from the rights of the child thereunder. I would respectfully adopt the statement of those rights set out at page 394 of the report of the judgment of Finlay C.J. in JH as follows:-

291. Where, as in this case, the parents are conceded to be “careful and responsible” it seems to me that this presumption is a powerful factor. I would respectfully follow the statement of Finlay C.J. immediately following that last quoted as to the circumstances in which their role might be supplanted.

292. The presumption to which I have referred is not, of course, a presumption that the parents are always correct in their decisions according to some objective criterion. It is a presumption that where the constitutional family exists and is discharging its functions as such, and the parents have not for physical or moral reasons failed in their duty towards their children, their decisions should not be overridden by the State and in particular by the Courts in the absence of a jurisdiction conferred by statute. Where there is at least a statutory jurisdiction, the presumption will colour its exercise, and may preclude it.

293. The presumption is not of course conclusive and might be open to displacement by countervailing constitutional considerations as perhaps in the case of an immediate threat to life.

294. I do not consider that an alternative approach to one based on the presumption I have described arises from the judgment of Ellis J. in PW v. AW (unreported) High Court 21st April, 1980. This was a custody case where, due to psychiatric illness “valid objection (could) be taken to the mother’s ability to provide for her child’s welfare”. With the support of the child’s father, custody was given to an aunt who was in a better position to provide for the child.

295. The child’s mother, AW, challenged the constitutionality of the provision in the Guardianship of Infants Act permitting custody to be given to a person other than a parent and it was in this context that Ellis J., at page 73 of the judgment made the comments quoted in the judgment of the learned Chief Justice.

296. I do not consider the approach of Ellis J. to be consistent with that outlined in the Supreme Court judgment in JH, cited above. Nor do I consider that, in order to arrive at the conclusion that the relevant section of the Guardianship of Infants Act was consistent with the provisions of the Constitution, it was necessary for Ellis J. to find as he did. Having regard to his preparedness, as outlined at page 72 of the judgment, to find that the mother had failed in her duty to the child for physical reasons, the statutory authority to make the Order which she challenged seems fully consistent with Article 42.5 of the Constitution.

297. This constitutional provision was considered in In Re Article 26 of the Constitution and the Adoption (No.2) Bill 1987 . The Court held that:-

298. It appears, on the basis of the last quotation, that Article 42.5 is broad enough in its terms to cover the range of parental duties, and not merely those relating to education. This being so, it appears that the presumption that the welfare of the child is to be found in the family exercising its authority as such is equally broad in its scope and that any rebuttal or displacement of it will normally involve invocation of the provisions of Article 42.5.

299. Article 42.5 is in the nature of a default provision. Under its terms, the State may in exceptional circumstances, upon a failure of parental duty for physical or moral reasons, become a default parent. The sub-Article does not constitute the State as an entity with general parental powers, or as a court of appeal from particular exercises of parental authority. Nor does it, in my view, allow a court to derive uniform rules for the exercise of that authority in detail.

300. It does not seem to me possible to hold that the respondent parents have failed in their duty towards their children. I entirely endorse what the learned trial judge has said in this regard. I do not view a conscientious disagreement with the public health authorities as constituting either a failure in duty or an exceptional case justifying State intervention. I agree with the learned trial judge when he says:-

301. The strength of the language in which, in Article 41 of the Constitution, the prerogatives of the family are acknowledged has often been remarked upon. The obligation of the State, set out in Article 41.1.2 “to protect the family in its constitution and authority” is entirely consistent with the restricted statement, in Article 42.5, of the circumstances in which alone the State “may endeavour to supply the place of the parents”. Analogies or precedents from jurisdictions lacking this distinctive assertion of the position of the family are of a limited utility in the exposition of the powers of the State, or other public bodies, under the Irish Constitution.

302. It has been observed that Article 41 and 42 of the Constitution “are generally thought to have been inspired by papal encyclicals and by Catholic teaching”. (Kelly, The Irish Constitution third edition page 991). Counsel for the Respondents in this case have submitted, in my view convincingly, that the same approach can be grounded otherwise and have referred us to an American academic authority, Professor Joseph Goldstein. The latter suggests that the common law “reflecting Bentham’s view, has a strong presumption in favour of parental authority free of coercive intrusions by agents of the State”. I would endorse this as a description of the Irish constitutional dispensation, even if any reflection of the views of Jeremy Bentham is coincidental. I do not regard the approach to the issue in the present case mandated by Articles 41 and 42 of the Constitution as reflecting uniquely any confessional view.

303. The Plaintiff’s case was put on the basis that the welfare of the child is the first and paramount consideration, by virtue of Section 3 of the Guardianship of Infants Act and that, accordingly:-

304. It seems to me that this is to oversimplify the issue by failing to confront or consider the weight which our Constitution requires to be given to the views and authority of the parents. When that issue was addressed, separately and much later in the Appellants submissions, it was not in fact contended that Article 42.5, in the circumstances of this case, entitled the State to “supply the place of the parents” . Instead, it was contended that the intervention proposed fell short of this: it amounted to a “supplanting” of parental authority in one particular only, but not a “replacement of the parents in any substantive way”. Immediately afterwards it was submitted that Article 42 “does not preclude a State intervention..... falling short of the supplanting of the parental place referred to in it”. These submissions do not seem wholly consistent with each other.

305. I do not accept that the authority of the family or role of the parents is capable of subdivision in this fashion. Articles 41 and 42 of the Constitution would be ineffective as guardians of the family “in its constitution and authority” if that authority were capable of piecemeal erosion or suspension in any way other than that provided by the Constitution itself.

306. I am further concerned by the express failure of the Plaintiffs to identify any ne plus ultra or limit in principle to the allegedly simple test set out in their submissions and quoted above. Though they disclaimed any present intention but the application of the PKU test to a small number of children , they declined to limit the application of a “medical benefit” criterion in any express fashion and even declined, in answer to a specific question, to concede that the approach could never be used to justify the compulsory treatment of an adult person of sound mind. These omissions perhaps underline the complexity of the subject matter and the unpredictability of future developments of the deceptively simple test the Health Board proposes.

307. Alternatively, it was submitted that Article 42.5 was not exhaustive of the grounds of which the State might intervene.

308. It is quite clear, on both principle and authority, that “the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered both under Article 42.5 and under Article 40.3” , as it was put in the Adoption Bill reference case, cited above, at page 663. But the argument based on this is circular, for the latter provision mandates intervention by or under the laws of the State. This legislative intervention is absent. As Kenny J. said in Crowley v. Ireland [1980] IR 102:-

309. I return below to the effect of the absence of legislation on the Courts power or willingness to derive the parental duty alleged by the Health Board to exist, by the development or extension of legal principles.

310. The appellant Health Board, in its submissions, placed considerable emphasis on this case. But it was a case of a wholly different character to the present one. There, the Plaintiff sought to impugn certain sections of a Statute, the Health (Fluoridation of Water Supplies) Act, 1960. It is impossible to construe the dicta in the judgments outside this context. The extract from the judgment of Ó Dhálaigh C.J. at page 350 of the report relied upon by the Plaintiff ends with the statement:-

311. A similar issue would arise in relation to the PKU test if it were made mandatory by legislation. The issue would not however be identical: the Act of 1960 empowered the public authorities to fluoridate the supply of water but did not of course require that any individual or family drink from the fluoridated supply. In the judgment of the High Court, Kenny J. said at page 314 of the report:-

312. Although the Supreme Court were not as convinced as Kenny J. of the ability to filter out fluoride, the case in both courts proceeded on the basis that there was no obligation to drink from the public supply of fluoridated water. The Plaintiff failed to prevent fluoridation of water and the reasons for her failure appear clearly at page 349 of the report. Having set out the nature of the dental conditions sought to be combated Ó Dálaigh C.J. continued:-

313. In the final paragraph of the Supreme Court judgment it is said:-

314. I do not consider that Ryan’s case can be read as providing any authority for the proposition that a duty to submit a child for the PKU test can be derived by the Courts from the provisions of the Constitution.

315. I have already commented on the novelty of the duty sought to be imposed on the respondent parents in these proceedings. It is unprecedented either domestically or internationally. This is being so it appears appropriate to recall what was said in the context of another attempt to assert a right or obligation independent of any statutory framework. In L v. L [1992] 2IR 77 there was an assertion of a right by a spouse to a share in matrimonial property by virtue of Article 41.2 of the Constitution. Finlay C.J. said at page 107 of the report:-

316. In my judgment in the recent case of Sinnott v. Minister for Education delivered the 12th July, 2001, I considered the constitutionally mandated separation of powers in some detail. I do not intend to repeat that discussion here. In any event the cases are somewhat different by reason of the absence of any significant need for public expenditure here. I would however observe that in a case such as the present it is particularly desirable from every point of view that any initiative to compel parents to subject their children to a test such as PKU be based on statute law and not on an application such as the present. I am expressing no view whatever as to whether such legislation would be desirable or otherwise. But if it were thought that a parent should be deprived of a right to refuse to consent to the PKU test, or any test, inoculation, examination, or procedure, that would be a major departure in public policy. The legislature, and not the Courts, are in the best position to judge whether such an innovation is necessary, proportionate or desirable, whether there are countervailing considerations of a social or medical nature or otherwise; whether there exists sufficient consensus in the community to make legislation feasible or desirable and many other relevant considerations. Compulsory medical diagnosis or treatment in any form is, for the reasons identified in the judgment of the learned Chief Justice, a topic regarded with some unease throughout the civilised world. The degree to which this unease should be recognised, whether precautions can be taken to allay legitimate fears, and the fundamental question of whether the imperative behind the PKU test or any other test is sufficient to justify coercion, are all matter best addressed legislatively. As McCarthy J. said in a completely different context in Russell v. Fanning [1998] IR 505:-

317. Moreover, if and when the legislature decides to introduce legislation of the relevant kind it will be for the Courts to determine, if the occasion arises, whether such legislation is consistent with the provisions of the Constitution. If the Court is called upon to make this decision, it will have the benefit of evidence and argument on a specific provision, probably in circumstances where the parties are more on a footing of equality from the point of view of resources than the present Plaintiffs and Defendants. If the Court themselves impose a novel obligation, the constitutionally envisaged arrangement whereby one organ of government makes law and another decides on its constitutionality, would be inhibited in its operation.

318. I have already referred to the portions of the Affidavits filed on behalf of the Plaintiffs which make it clear that what the Health Board seeks from these proceedings is a ruling of general application. I accept that this Court is confined to considering the case in the light of the evidence adduced and the submissions advanced. As the learned Chief Justice says in his judgment it is not impossible that another result might be achieved in a different case decided on different evidence.

319. I consider however that, in practice, declarations of the kind now sought would have the effect if not the legal character of legislation for the vast majority of persons affected. It would, to say the least, have a “chilling effect” on other persons sharing the Respondent’s view or some version of it. This consideration might not preclude the Courts from acting to declare and enforce the rights of a Plaintiff, or an infant, in a situation of emergency. However the present case is specifically put before us as one intended to lead to a result with general application. I consider that a case so framed and advanced seeks to bring the Court too close to the legislative function.

320. There is a separate but related difficulty in asking the Courts to derive from the Constitution a novel duty or obligation to be imposed on parents, or on any group of citizens. It arises from the nature of the Constitution itself. This difficulty is well expressed in the judgment of Costello J. (as he then was) in P.H. & Ors. (Infants) v. John Murphy & Sons Ltd. [1987] IR 621. There, the Plaintiffs were infants whose father had been seriously injured due to the negligence of the Defendant. Proceedings instituted on behalf of the father were settled in a substantial sum. The infants then instituted proceedings claiming, inter alia, damages for breach of constitutional duty in respect of the loss of the non-pecuniary benefits which the father of a family bestows on his children. This cause of action was said to exist by virtue of Article 41.1.2 of the Constitution.

321. Costello J. held that no duty of care was owed by the Defendants to the infant Plaintiffs by virtue of the Constitution. In arriving at this conclusion he held:-

322. I respectfully agree that the primary purpose of the provisions of the Constitution as to fundamental rights is to protect such rights and the people who enjoy them from unjust laws and from arbitrary State action. A person who enjoys such right is also entitled to the protection of the Court against the infringement of such right by persons other than the State: see Meskell v. CIE [1973] IR 121 and Conway v. Irish National Teachers Organisation [1991] 1 IR 305. But that this is quite different from deriving and enforcing the entirely novel duty proposed on ordinary citizens based on provisions whose primary purpose is “to protect them from unjust laws enacted by the Oireachtas and from arbitrary acts committed by State officials”.

323. A family, such as the family of which the Respondents are the heads, consist of parents and children. Since a child will not himself or herself be capable of making or of acting upon any decision as to its own welfare, these decisions must necessarily be made by some person or agency on his or her behalf. In practice, this will almost invariably be either the parents or a parent on the one hand or a State or public agency of some sort on the other. The Plaintiff urges us to let a particular decision be taken by an entity of the latter sort because, it says, the decision that such a body will take has been rationally shown to be in the objective best interest of the child. But in the choice of decision maker, the Constitution plainly accords a primacy to the parent and this primacy in my view gives rise to a presumption that the welfare of the child is to be found in the family exercising its authority as such. This reflects the right both of the parents and of the children to have the family protected in its Constitution and authority.

324. I do not consider the presumption just described to have been rebutted or the conditions for the displacement of parental authority to have been met. I would make no Declaratory Order at the suit of the Health Board. I would decline to make the first declaration sought, apart from any other consideration, on the basis that in its own terms it is not a declaration of right, such as a court can properly make, but merely an invitation to express an opinion on a matter which is not of a legal nature. Alternatively, if the claimed declaration is to be regarded as being of a legal nature on the basis that the term “best interest” is a term of art embodying exhaustively the basis on which the Court should decide a mater affecting the welfare of a child, I would refuse to make the declaration in the form sought on the basis that it fails to reflect the presumption in favour of family autonomy which I believe to exist.

325. I would decline to make the second declaration sought for the reasons set out earlier in this judgment.

326. I would add that the exhaustive argument in this case has, in my opinion, provided no support whatever for the view that the Health Board could have any liability to a child to whom, through his parents, the PKU test was effectively offered but declined by them on his behalf.