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Cite as: [2013] IESC 60

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Judgment Title: O'S & anor -v- Doyle & ors

Neutral Citation: [2013] IESC 60

Supreme Court Record Number: 274/13

High Court Record Number: 2012 638 JR

Date of Delivery: 19/12/2013

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Fennelly J., Clarke J., MacMenamin J.

Judgment by: MacMenamin J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result	Concurring
MacMenamin J.	Link	Appeal dismissed	Denham C.J., Murray J., Fennelly J., Clarke J.

Outcome: Dismiss

THE SUPREME COURT

[Appeal No: 274/2013]

Denham C.J.
Murray J.
Fennelly J.
Clarke J.
MacMenamin J.

Between/

C.O’S. and T.B. (A minor suing by his mother and next friend C.O’S.)

Applicants/Appellants

and

Her Honour Judge Alice Doyle

Respondent

and

D.B.

and

The Attorney General

Notice Parties

Judgment of Mr. Justice MacMenamin, delivered on the 19th day of December, 2013

Introduction
1. This is an appeal against the judgment and order of the High Court (Moriarty J.), wherein that court dismissed the appellant’s application seeking judicial review of the decision and order of the respondent, Her Honour Judge Doyle, of the 14th June, 2012, in a District Court appeal. It is necessary to set out the procedural background to the appeal in some detail.

2. This appeal arises from an issue as to whether T.B., then a five year old boy, should receive 4-in-1 and MMR booster injections. The mother opposes this course of action. She is the appellant. The father is in favour of this proposal. He is the notice party, D.B. On the 23rd May, 2012, the District Court, sitting in the area where the second named appellant, T.B., resides, granted an order directing the booster immunisation injections on him were to proceed. The application giving rise to this order was brought by his father, D.B., pursuant to s. 11(1) of the Guardianship of Infants Act 1964 (“the 1964 Act”). It was resisted by T.B.’s mother, C.O’S., the first named appellant herein. That section, as amended by the Children Act 1997, provides:

“Any person being a guardian of a child may apply to the court for its direction on any question affecting the welfare of the child and the court may make such order as it thinks proper.”

Welfare of a child, as defined in s. 2 of the Act of 1964, as substituted by s. 4 of the Children Act 1997, comprises its “religious and moral, intellectual, physical and social welfare.” Section 3 of the 1964 Act, as amended, also provides:

“Where in any proceedings before any court the custody, guardianship or upbringing of a child, or the administration of any property belonging to or held on trust for a child, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the child as the first and paramount consideration.”

3. T.B. was born on the 27th March, 2007, and is now aged 6 years. The mother and father of the child were not, and are not, married. However, well prior to the District Court application just referred to, the father had applied to the District Court for an order making him a guardian of the child. By consent, this order was granted on the 7th October, 2009. That order, made pursuant to s. 6A of the 1964 Act, as inserted by the Status of Children Act 1987 and amended by the Children Act 1997, gave him the status of legal guardian of the child. On the same date, the District Court made further consent orders, making provision for D.B.’s access to T.B., and also directing that he pay maintenance for the child’s upkeep in the sum of €40 per week pursuant to s. 5A(1) of the Family Law (Maintenance of Spouses and Children Act) 1976, as amended. A later order granted the father joint custody with the mother, and T.B. now spends five days per fortnight with his father, and nine days with his mother.

4. On the 14th June, 2012, the respondent herein, Her Honour Judge Doyle, dealt with an appeal against the District Court order made three weeks earlier, directing the injections should proceed. Having read the documents, heard the evidence and submissions from counsel representing the appellant, and the respondent in person, the Circuit Judge affirmed the order of the District Court dated the 23rd May, 2012. On the 16th July, 2012, the mother sought leave to seek judicial review challenging this Circuit Court order. The matter came before the High Court (Moriarty J.) who, having heard submissions and argument, dismissed the application. The mother has appealed that order to this Court.

The application brought by the appellant
5. At the outset, it is necessary to refer to the grounds upon which leave was sought. For clarity, the references immediately hereafter have been slightly amended only so that there is no information which could identify the parties, and to avoid any confusion in the description of the parties. The mother sought, in essence:

(i) leave to seek an order of certiorari quashing the Circuit Court order dated the 14th day of June, 2012, compelling T.B.’s vaccination against the wishes of the mother;

(ii) leave to seek a declaration that to order T.B.’s vaccination contrary to the wishes of the mother is in breach of s. 4 of the Health Act 1953 and therefore unlawful;

(iii) leave to seek a declaration that to make an order notwithstanding [the Circuit Judge’s] reservations as to jurisdiction to so do and on the basis that the mother had “a remedy” in judicial review was in breach of the mother’s constitutional rights;

(iv) leave to seek a permanent prohibitory injunction preventing vaccination of T.B. against the mother’s wishes; and

(v) the granting by the court of a stay/injunction pursuant to Order 84 Rules 18, 19 and 20 preventing any such vaccination being carried out on T.B. on Monday, June 18th, or any other stage thereafter pending the hearing of the within should leave be granted.

6. The grounds upon which an order of certiorari was sought in the statement required to ground the application for judicial review were (again using the mother’s terminology save with regard to the description of the parties):

(a) the respondent Circuit Judge had no jurisdiction to make the impugned order affirming the decision of the District Court (pursuant to s. 11 of the Guardianship of Infants Act 1964) in light of the provisions of s. 4 of the Health Act 1953;

(b) the respondent Circuit Judge had not addressed the question of law and jurisdiction raised despite acknowledging that there might well be an issue as to the Court’s jurisdiction, and herself canvassing the possibility of stating a case to the Supreme Court on the point, ultimately rejecting that option solely on the basis that the decision would take too long, and the child would be deprived in the interim of vaccination, instead suggested that she would decide the issue on the basis of the best interest of the child principle, and a remedy would still be available to the mother – in that the impugned decision could be reviewed and/or injunctive relief sought; in so doing the Circuit Judge thereby breached the constitutional and statutory rights of the mother including a fair hearing, erred in law and acceded jurisdiction;

(c) if it could be said that the Circuit Judge did address the question of law/jurisdiction raised, she erred in law in reaching the conclusion which she did;

(d) that the Circuit Judge’s decision was otherwise or demonstrated slight pre-judging without impartially considering the issue of law and in respect of the evidence in the circumstances;

(e) in the alternative, that the decision of the Circuit Judge to refuse to give the mother an opportunity to adduce further professional evidence as regards to medical practices to the child and deciding the matter in the absence of same, was unreasonable and contrary to audi alterem partem, and further meant that the decision was without consideration of the merits based on proper evidence.

The mother also sought declarations that insofar as the Circuit Court judge had failed to consider the applicable law, or apply it correctly; that her rights guaranteed by s. 4 of the Health Act 1953, and under the Constitution, were breached; and further that making the said order, notwithstanding the provisions of s. 4 and such rights, was unlawful. The mother finally sought injunctive relief seeking a stay of the order of the Circuit Court judge pending the outcome of the judicial review application.

Procedure in the High Court
7. After leave to seek judicial review was granted on the 16th July, 2012, the matter came for mention before the High Court (Moriarty J.), who, having heard submissions as to the nature of the case, delivered a preliminary ruling on the procedure to be adopted on the 10th December, 2012. In that, and the later High Court hearing, the mother was assisted by a McKenzie friend. The father presented his own side of the case, and was not legally represented. In light of the constitutional arguments which were raised before him, the High Court judge, relying on the provisions of Order 60 Rule 2 of the Rules of the Superior Courts, directed that the Attorney General be served with notice of the proceedings. He considered, properly, that such joinder was necessary to facilitate a just and adequate determination of what he termed a significant issue, where both parties lacked professional legal assistance. Counsel on behalf of the Attorney General made written and oral submissions in the High Court. The mother also lodged written submissions. Additionally, she tendered a number of documents and called evidence in the High Court by a person who holds a Bachelor of Science degree as well as other qualifications, but who is not legally qualified. These documents expressed opposition to the procedures, and related to the safety, efficacy and necessity of the injections. Having heard the parties (including the notice parties), on 16th May, 2013, the High Court judge delivered judgment on the issues which arose. This judgment is now appealed.

Procedure in the Supreme Court
8. When the matter first came before this Court, it was clear that constitutional issues of some significance were raised. By then, the appellant mother was again legally represented, but the father remained unrepresented. The matter was adjourned so as to ensure that he, too, obtained legal representation. At the full hearing of this appeal, both the mother and father were represented by senior and junior counsel. It was unnecessary for the Attorney General to be represented by counsel in the appeal as the written submissions in the High Court were sufficient.

The statement seeking judicial review
9. An applicant who is a litigant in person, will often draft a statement of grounds seeking judicial review without legal assistance. He/she may have to seek assistance with legal terminology. A court will extend a degree of latitude to such litigants. But the obligation to identify the real issue, and to properly frame and plead a judicial review binds all litigants. A pleading which does not identify the issue in such a case is a flawed pleading. As matters transpired, the nub of the appeal, as presented to this Court, is that the mother says that she could stop the vaccinations because of her unenumerated right as a mother under Article 40.3 of the Constitution. She claims a form of constitutional veto, which she contended had not been recognised by the Circuit Judge or by the High Court in the following judicial review. This point was not adequately pleaded. It might be suggested the point emerges very obliquely from the statement of grounds, but no more. Whatever its merits, the point was central to this case. The appellant was legally represented for this appeal. However, no application was made at any stage to amend the statement of grounds to plead this point fully. The statement of grounds did not comply with the Rules of the Superior Courts therefore.

10. On a number of occasions, this Court has reiterated the principle that judicial review proceedings must be conducted within the parameters or framework identified in the statement of grounds, the notice of opposition, and the order granting leave (see, most recently, A.P. v The Director of Public Prosecutions [2011] 1 IR 729). It cannot be sufficiently emphasised that judicial review proceedings must operate within the framework of Order 84 of the Rules of the Superior Courts.

11. It is necessary to point out also that this appeal was heard and delivered at a time prior to the final determination of a petition challenging the validity of the referendum on the Thirty-First Amendment of the Constitution (Children) Bill 2012. At the time of this judgment, an appeal against an order of the High Court dismissing the petition is still pending. Consequently, this Court cannot have regard to the provisions of the proposed amendment as it is not part of the Constitution. While there may also be other proposals to amend the law in this area, the Court must apply the law as it stands. It is also necessary to emphasise that no challenge was brought in these proceedings to the constitutionality of s. 11 of the Guardianship of Infants Act 1964, as amended.

The relationship between the parties
12. The lengthy nature of the relationship between the father, the mother and the child is material to this appeal. The parents commenced their relationship as long ago as the year 2000. By the time of T.B.’s birth in 2007, the parents had lived together for approximately four years. Subsequent to the birth, the couple remained together for approximately a further two years. Thereafter, the relationship broke down and they ceased cohabitating. Thus, while not coming within the definition of a “family” as recognised in Articles 41 and 42 of the Constitution, the parents and their son had, to use Finlay C.J.’s terminology in J.K. v V.W. [1990] 2 I.R. 437, “nearly all of the characteristics of a constitutionally protected family”.

13. D.B.’s involvement in his son’s life continued after the break-up. As outlined earlier, in 2009, he had applied to the District Court for an order making him a guardian of the child. This order, pursuant to s. 6A(1) of the Act of 1964, as amended, was made on consent. The section provides that:

“Where the father and mother of a child have not married each other and have not made a declaration under section 2 (4), or where the father was a guardian of the child by virtue of a declaration under section 2 (4) but was removed from office under section 8 (4), the court may, on the application of the father, by order, appoint the father to be a guardian of the child.”

By virtue of this order, he enjoys “extensive rights of interest and concern” (per Hamilton C.J. and Denham J. in W.O’R. v E.H. [1996] 2 I.R. 248).

14. In his judgment, the learned High Court judge observed that the father had abided scrupulously by his duties regarding access and maintenance, and that the mother and father enjoyed shared custody of the child, although with most of the day to day care and control being vested in the mother.

15. D.B. was named as T.B.’s father on the child’s birth certificate. He notified the Registrar of Births of T.B.’s birth on the 10th April, 2007, for the purpose of registration. The circumstances show that he has been engaged to a very significant degree in T.B.’s life, and continues to be so.

Evidence in the District Court proceedings
16. The unfortunate dispute in issue arose between the mother and father when T.B. was about to go into primary education. The HSE routinely administer booster vaccinations to children at this time. The mother objected to the procedure. By then, she had strongly felt objections and beliefs as to the effect of such injections. She contended that, as a mother holding rights recognised under Article 40.3 of the Constitution, and deriving automatic rights to guardianship under statute, she was entitled to exercise a veto on the vaccinations. The father applied to the District Court for an order directing that the vaccinations be carried out.

17. At the District Court hearing on the 23rd May, 2012, the father produced, and relied on, a HSE booklet advocating the need for booster vaccinations; a record of immunisations previously administered by consent to T.B.; and a letter from the child’s GP outlining the desirability of the further vaccination procedures. The mother did not produce any such evidential material for that hearing.

The procedure in the Circuit Court
18. The appeal came for mention before the Circuit Court in early June 2012. The matter was adjourned then on the mother’s application. She was by then legally represented, and had the services of solicitor and counsel at the hearing of the appeal in the Circuit Court, which came on for hearing two weeks later. Both the mother and her legal representatives were aware of the evidential basis upon which the father was making his case. The matter obviously received careful attention in the Circuit Court. The hearing of the appeal lasted for over two hours. The only witnesses were the father and mother. Ultimately, the judge ruled against the mother on the “veto” point, which her counsel raised. After that ruling, counsel for the mother then, but only then, applied to adjourn the case to adduce further evidence as to the basis of her concerns about the practice. The judge declined to adjourn the matter further, dismissed the appeal, and affirmed the District Court order. The mother then initiated these judicial review proceedings.

The issue before the High Court
19. The application before the High Court was for judicial review. The sole issue for determination was, therefore, whether the learned Circuit Judge had acted in excess of jurisdiction, or misdirected herself on the law to the extent that any such error went to jurisdiction. Evidence on the efficacy or risks of the booster procedures was not material to a judicial review application, despite the fact that the mother called such evidence in the High Court. The High Court judge permitted some evidence on the merits issue nonetheless. Ultimately, he rejected the contention that by reason of her constitutional status, the mother held a higher position in the hierarchy of rights such as would make her views on the booster injections determinative. In so holding, the High Court judge relied on the principle of the best interests of the child. He put the point this way:

“Section 3 of the [Guardianship of Infants Act 1964] mandates that the welfare of the child forms the first and paramount consideration in the making of any order under the Act. Where there are situations where guardians, both having equal say and input into their child’s well being, differ to such degree that an agreement cannot be reached, it seems to me imperative that a mechanism exist to act in the best interests of the child.”

He concluded that the Circuit Judge had not erred in the exercise of her jurisdiction. The mother appealed.

The family as recognised in the Constitution
20. It is necessary now to consider some of the main authorities which address this issue. Can the mother avail of the rights vested in the family, as recognised in the Constitution? In McD. v L. [2010] 2 IR 199, this Court reaffirmed that the concept of the “family”, as recognised in the Constitution, did not encompass the relationship between a mother and a father when they are not, and never were married. In her judgment, Denham J., as she then was, summarised the case law on this issue:

“Throughout our case law the family is defined as the family based on marriage. In The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 Henchy J. stated at p. 622:-

"For the State to award equal constitutional protection to the family founded on marriage and the 'family' founded on an extra-marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1 to guard with special care the institution of marriage."

Walsh J. stated at p. 643 that:-

"It is quite clear … that the family referred to in [Article 41] is the family which is founded on the institution of marriage and, in the context of the Article, marriage means valid marriage under the law for the time being in force in the State …"

....

Therefore, arising from the terms of the Constitution, "family" means a family based on marriage, the marriage of a man and a woman.”

21. Article 41.3.1 provides:

“The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.”

Article 41 of the Constitution cannot therefore afford special protection to the mother in this case as she is unmarried, and her constitutional entitlement is based on unenumerated rights under Article 40.3 of the Constitution. The mother nonetheless contends that, by virtue of the fact her status is so derived, this in itself gives her a higher place than the father in the hierarchy of rights in an application to the courts under s. 11 of the 1964 Act.

22. In McD. v L., Fennelly J. stated a mother outside marriage enjoys a personal right under Article 40.3 of the Constitution. But it is very well established that the protection which is afforded to the family not only under Article 41 but also under Article 42 of the Constitution is based on the family as established by marriage. Thus, to prevail, the mother’s case would have to rely significantly on a contention that she and her son constituted a “family” cognisable by the Constitution. But this cannot be so as the law provides that the recognition given to the constitutional family is only one that is based on marriage. Thus, any claim that she has right to veto on vaccination based on the constitutional protection for the family cannot succeed. Were the mother to have a veto, it would set at naught the father’s rights and status as a legal guardian appointed by the District Court.

The rights of a family recognised under the Constitution
23. Counsel for the mother relies on the well known judgments of this Court in North Western Health Board v H.W. and C.W. [2001] 3 IR 622. But the facts of that authority are very different from this case. In North Western Health Board, both the parents objected to a state vaccination scheme. They were married. There, the parents and their children constituted a family under Article 41 and Article 42, and were protected from State intervention in decision-making in such matters. The parents were united on the question. The case concerned an issue between the State and married parents of family cognisable under the Constitution.

24. By contrast, the issue here is one between two unmarried guardians, not one between the State, on the one hand, and a constitutional family, on the other. For the District Court, or on appeal the Circuit Court to have a role in a dispute of this nature, it is not necessary to show a failure of parental duty. It is true that Article 42.5 of the Constitution provides:

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.”

But there is no evidence of any failure of duty here as properly understood. The State is not endeavouring to supply the place of the parents. A failure of duty in the sense envisaged under Article 42.5 would necessitate an abandonment of normal parental duties (see N. v HSE [2006] 4 IR 374). This is not the position here. There is a clear distinction between an abandonment of parental duty on the one hand, and a dispute between legal guardians as to how their duties are to be exercised.

25. Section 11(1) of the Act specifically provides that an application may be made by a guardian having regard to any issue pertaining to the child’s welfare. The matter in issue undoubtedly relates to T.B.’s “physical” welfare (see the definition of welfare as cited earlier). The operation of s. 11(1) does not proceed on the basis that there has necessarily been any failure of parental duty. By virtue of the recognition contained in s. 6(4) of the 1964 Act, the mother is T.B.’s guardian. By virtue of the District Court order of 2007, the father is T.B.’s guardian.

26. It is true that a previous judgment of this court affirms that a father of a non-marital child does not enjoy the same constitutionally derived right as the mother (see J.K. v V.W., cited above). It is important to emphasise, however, the extent of the court’s finding in that case. It is, simply, that a non-marital father does not, ipso facto, by virtue of his paternal status alone enjoy a constitutional right to guardianship. However, once the father is appointed a guardian, the position substantially alters.

The concept of guardianship
27. The concept of guardianship encompasses both duties and rights. These involve duties to maintain and properly care for a child, and rights to make decisions about that child’s religious and secular education, health requirements, and general welfare. The right to custody of a child is one of the rights that arises under the guardianship relationship. However, the concept of custody and guardianship must not be conflated. Custody involves the notion of the day to day care of the child. The fact that one or other parent enjoys custody does not always, in itself, mean that by virtue of this fact alone, that custodial parent enjoys rights which take precedence over the other parent who is also a guardian. It is necessary then to address what is the determining factor.

The welfare of the child
28. The central issue in all decisions of this nature is the welfare of the child. Section 3 of the 1964 Act so provides in explicit terms. Thus, in applying that principle, a judge is acting in accordance with law, and is not acting in excess of jurisdiction. Not infrequently, by virtue of the child being in the custody of one or other parent, the circumstances of custody, and its consequences, may point to the direction as to which way some decision regarding the child’s welfare should go. This may derive from the links or emotional attachments derived from the fact of custody. But this does not derogate from the rights of a non-custodial parent, who is a legal guardian, to be heard and involved in the decision-making process. By contrast, a failure to apply for guardianship rights can have serious consequences in issues such as the right to move a child from one jurisdiction to another without consultation (see J.McB. v L.E. [2010] 4 IR 433 (High Court); [2010] IESC 48 (Supreme Court); and Case C 400/10 PPU, McB [2010] ECR I-8965 (European Court of Justice)).

The extent of the natural father’s rights
29. The extent of rights that a non-marital, legal guardian, father enjoys may be measured in accordance with a number of factors. Although observing that a natural father enjoyed a right to apply to be appointed as a guardian, Finlay C.J. commented in J.K. v V.W.:

“The extent and character of the rights which accrue arising from the relationship of a father to a child to whose mother he is not married must vary very greatly indeed, depending on the circumstances.”

The then Chief Justice continued:

“The range of variation would, I am satisfied, extend from the situation of the father of a child conceived as the result of a casual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as the result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.”

In W.O’R. v E.H., Denham J. described the rights of interest and concern of the father as being “directly in proportion to the circumstances that existed between the [father] and the children. The greater the beneficial contact for the children there has been, the more important it is to the welfare of the children and so the higher the rights of interest and concern of the [father].”

The position of the father in this case
30. On the basis of the uncontested evidence, the position of the father here falls into the latter of the two categories identified by Finlay C.J. Thus, his views will carry weight. But, because the extent of the rights of interest which accrue depend on the extent of a stable and established relationship with T.B, the manner in which these rights, interests and duties are balanced lies with the courts, always recognising the centrality of the welfare principle.

31. In a position like the present, neither parent enjoys some form of pre-determined, constitutionally protected veto in applications of this type. The judgment of this court in J.K. v V.W. is not an authority for such a proposition. What will “tilt the balance” one way or another is the child’s welfare.

32. There is no authority for the concept of a veto in circumstances such as here. The decision of this Court in the North Western Health Board case is, therefore, not relevant, save as an illustration of the distinctions between that case and the position here.

Application under s. 11(1) of the Guardianship of Infants Act 1964, as amended
33. Pursuant to s. 11(1) of the Act, therefore, a guardian may apply to the court for its direction on “any question affecting the welfare of an infant” (emphasis added). The very purpose of the Act is that any legal guardian may apply to the court for a determination of an issue regarding the child’s welfare. This applies whether the guardian is a marital or non-marital parent, or some other person so appointed. There is no indication in the terms of the statute, or anywhere else, that, by virtue of the provenance of their rights, the scales are to be weighed in favour of one guardian over another. But what is unavoidably true, is that, as the Act of 1964 provides, the welfare principle and its consequences are paramount.

34. It follows that, in applying that welfare principle, the respondent did not err. She acted in accordance with s. 3 of the 1964 Act. There was no duty upon her to so balance the scales as to place the position of the mother at some higher point on the scale in her decision. The duty which devolved upon the Circuit Court judge here, and upon all courts, was to act in accordance with law. It is not the function of this Court on an appeal of this type to express any view on the merits of the case the mother sought to make.

35. Instead arguably, if the logic of the mother’s case were to be followed to its conclusion, it would have the consequence that courts, as an organ of the State, would have no constitutional entitlement to determine this issue or other issues by virtue of the mother’s constitutional status. Insofar as any submission was made to this effect, I reject the argument that a court, as an organ of the state, must give way, or yield, to the wishes or rights of one guardian over another, no matter what the provenance of the rights sought to be claimed. In the administration of justice, a duty vested by the Constitution, the courts are endowed with the duty of determining issues which arise between guardians, be they married or unmarried parents.

36. The High Court judge concluded that there was no indication that the respondent acted beyond jurisdiction in rejecting the concept of a constitutional veto. It held that she applied the statute. As Denham J. points out in North Western Health Board:

“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.”

It follows from the discussion above that, in my view, the High Court judge was correct in his conclusion.

The Health Act 1953
37. The appellant also seeks to rely on a separate, but associated, submission. It is necessary to again emphasise that the Act of 1964, as amended, enjoys the presumption of constitutionality. Its status has not been challenged in these proceedings.

38. Section 4 of the Health Act 1953 provides as follows:

“(1) Nothing in this Act or any instrument shall be construed as imposing an obligation on any person to avail himself of any service provided under this Act or to submit himself or any person for whom he is responsible to health examination or treatment.

(2) Any person who avails himself of any service provided under this Act shall not be under any obligation to submit himself or any person for whom he is responsible to a health examination or treatment which is contrary to the teaching of his religion”. (emphasis added)

39. It is true that, as an aspect of the unenumerated constitutional rights of autonomy and bodily integrity, an adult person may refuse to undergo a medical procedure. But different considerations must be applied when a parent or guardian seeks to make a choice of this type on behalf of the child, when that choice is opposed by another person, who is also a guardian. In such a situation, the welfare principle is engaged, and applied by the courts, in the exercise of their guardianship jurisdiction.

40. The statutory position under the Health Act is distinguishable from the Guardianship of Infants Act by reason of the express reservation contained in the latter provision. This is not a situation where there is an “obligation or imposition” of treatment, contrary the 1953 Act, or one where one person only is responsible for T.B. The two guardians, not one, are responsible for the child. The issue concerns an application to court regarding T.B.’s “welfare” made by one of the guardians responsible for him, and opposed by the other. If the legislature had intended the position to be that the views of just one parent or guardian be preferred over another, so as, in the case of a child, to allow s. 4 of the Health Act to supplant or take precedence over the Guardianship of Infants Act 1964, such preference would have to have been expressly provided for in the 1964 Act ab initio, or indeed in any one of the amendments to that Act since it was first enacted. It was not. As pointed out earlier, the Act of 1964, in its amended form enjoys the presumption of constitutionality. I turn then to the second main point in the appeal.

The refusal to grant an adjournment
41. As a further aspect to his submission, counsel for C.O’S. contends that the learned Circuit Judge ought to have adjourned the case in order to allow the mother to adduce evidence regarding alleged medical risks to the child. It is said that, in deciding the issue in the absence of such evidence, the respondent fell into error. The mother avers that her counsel made submissions to the learned Circuit Judge who rose to consider these; upon returning, the judge asked if there were any further submissions from either side and, if there were, she would hear them at that juncture. The appellant says that her counsel asked for the opportunity to call evidence on another day but the Circuit Judge declined to adjourn the case.

42. This was a decision within the trial judge’s discretion (see the judgment of Keane C.J. in R.B. v A.S. [2002] 2 IR 428 at 447). Any argument based on fair procedures must be seen in context. The decision sought to be impugned by the appellant was a decision by the Circuit Judge sitting as an appellate court. The application had previously been dealt with in the District Court on the 23rd May, 2012. The appellant did not then call medical or expert evidence. She testified herself. By the time the Circuit Court appeal came on, both the mother and her advisors must be taken as having been well aware of the nature of the material upon which the father was relying. The District Court appeal to the Circuit Court had been granted an expedited hearing, and was listed for hearing on the 14th June, 2012. The case proceeded. Counsel did not apply for an adjournment prior to the judge’s ruling; nor give any indication that witnesses were unavailable. The appellant had no other witnesses in court or then available. It was open to the appellant, both before the District Court, and before the Circuit Court to call what evidence she wished. She did not do so. The decision to decline the application to adjourn was made on an issue of discretion. A review court will be slow to intervene on an issue regarding the exercise of a court’s discretion unless it is shown that the discretion was exercised in such a manner as to call the jurisdiction of the court into question.

43. No explanation has been offered as to why the mother did not present what is said to be medical or scientific evidence in the District or Circuit Court. Specifically, no explanation has been given to this Court as to why witnesses to support the appellant’s contentions were not in the Circuit Court at the appeal. Instead, the appellant stood upon her legal submissions, and only when these submissions were ruled against was the application to adjourn the hearing made. At that stage the respondent had heard both parties, and had embarked on an extensive consideration of the matter. There is no suggestion that the hearing was conducted in an abrupt or hurried fashion. In fact, witnesses to support the mother’s case were called only in the High Court judicial review, where very arguably they had no role in a hearing where jurisdictional error was the issue.

44. On the facts, I am not persuaded the Circuit Court judge erred in deciding to complete the hearing which she had embarked on, and heard for some two hours.

Conclusion
45. In the circumstances, I would dismiss this appeal.

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