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Cite as:  1 ILRM 19,  IESC 26
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Judgment Title: In the Matter of Wards of Court and In the Matter of Francis Dolan
Composition of Court: Geoghegan J., Fennelly J., Kearns J.
Judgment by: Geoghegan J.
Status of Judgment: Approved
Notes on Memo: Appeal Allowed. Remit to High Court
THE SUPREME COURTGeoghegan J.
IN THE MATTER OF WARDS OF COURT
AND IN THE MATTER OF FRANCIS DOLAN
JUDGMENT of Mr. Justice Geoghegan delivered on the 4th day of July 2007
This is an appeal from an order of the High Court (Wards of Court) (Finnegan P.) against an order directing that the following issue be tried without pleadings namely -
“Whether or not the respondent, Francis Dolan, is of unsound mind and incapable of managing his person and property”.
From the very start, the parents, who it would appear, are in every way excellent parents took strong objection to any idea that their son should be made a Ward of Court. They had more than one objection. They took the view supported by their family doctor, Dr. Peter Keogh, that their son could not properly be described as “of unsound mind”. Dr. Keogh while acknowledging in a report that the appellant was not capable of managing his financial affairs “as he does not have the mental capacity to understand the issues involved” nevertheless asserted the following:
“Francis is not of unsound mind. This is a psychiatric diagnosis denoting mental illness and he is not suffering from mental illness. I have known Francis since he was very young and have never seen any evidence of mental illness.”
The parents in this case viewed with horror the terminology used in the Lunacy Regulation (Ireland) Act, 1871 and the General Orders in Lunacy. They were not appeased by any explanation that the language was merely procedural. Most importantly of all, however, they strongly object to the whole concept of both the person and the property of their son being under the control of the President of the High Court rather than primarily under their own control. From start to finish, the parents have persisted in these objections. There is extensive correspondence with the Wards of Court Office which, for the most part, I do not think it necessary to refer to in this merely procedural appeal. What is highly relevant however is that early in 2002 an informal application was made in open court to the former President of the High Court, Mr. Justice Finnegan, on behalf of the appellant for permission to set up a trust? The proposed trust was to be created to manage the monies received by the appellant in settlement of the action. The proposal put to the court at that time involved appointing the mother, Bernadette, and the father, Francis Dolan as the initial trustees together with some non-family trustee. The proposal also involved professional money managers to oversee the investment of the funds. The former President, however, took the view that he would have no jurisdiction to entertain such a suggestion and stated that steps should now be taken to make the applicant a Ward of Court. The cash funds were placed under the control of the High Court through the Accountant General of the High Court rather than the Registrar of Wards of Court and are on deposit with the Nationwide Building Society.
In an affidavit sworn in separate proceedings the nature of which I will return to explain and which affidavit formed part of the materials before this court, Mr. Dolan explains that after the refusal of the President to authorise the creation of the proposed trust, he set about researching the precise nature of the Wards of Court jurisdiction and sought legal advice. He said that this took some considerable time. He explained that in early 2003, he approached the Registrar of Wards of Court, Mr. Noel Doherty, and put forward his views and those of his family as to why he did not believe that it was in the best interest of his son, Francis, that he be made a Ward of Court. The Registrar undertook to raise the matter further with the President.
There followed a letter dated 30th May 2003 from the Registrar enclosing a copy of an order of the President of the High Court dated the 28th May 2003. The order directed that one of the court’s Medical Visitors do visit the appellant and file a report in accordance with the provisions of sections 11 and 12 of the Lunacy Regulation (Ireland) Act, 1871. There was further protest on receipt of this order the details of which it is not necessary to set out in this judgment. It is sufficient to quote the following sentence from paragraph 7 of the above mentioned affidavit.
“I say that I was surprised to receive this letter and order, particularly as I had not received notice of any hearing nor was I afforded the opportunity to make representations directly to the court. I say and believe and I am so advised that the order of the High Court dated 28th May 2003 is invalid as it fails to show jurisdiction and in any event such order should have been made if at all in open court in my presence or in the presence of my legal advisor.”
I refer to correspondence concerning Francis Dolan Junior on whose behalf I act and to the correspondence passing between our respective clients. Francis Dolan Junior was born on the 26th April 1982 and is 21 years of age. He is now diagnosed as suffering from spastic quadriplegia with moderate mental handicap and requires full-time care. His parents have provided this for the past 21 years. His three sisters also provide some respite care by taking their brother for weekends and short breaks.
It is with regret that this letter is written in circumstances where the family of Francis Dolan, including his parents, do not wish to have his affairs dealt with under the Lunacy Regulation (Ireland)Act, 1871 and the further legislation providing for the jurisdiction currently administered by the President of the High Court and your office as Registrar of Wards of Court within the office of Wards of Court.
The jurisdiction exercised in effect condemns a person as a lunatic following a medical inspection carried out on behalf of your office further to directions given by the President of the High Court under the relevant legislation. My clients are willing to address the investment of monies on their only son’s behalf in a constructive manner and subject to such trust or cognate arrangement as may be agreed.
The badge of lunacy and insanity which the Lunacy Regulation (Ireland) Act, 1871 still contains within its procedures and the failure of this mid-nineteen century legislation to have any adequate regard for the constitutional entitlements and rights of Francis Dolan Junior and his family is a matter of utmost concern to my clients. The family, including Francis Dolan Junior, have rights under the Constitution of Ireland which the current legislation fails to adequately respect or recognise. In addition the European Convention on Human Rights recently incorporated into national law has special provisions providing for the right to respect for private and family life.
If required I am instructed by my clients to issue proceedings claiming, inter alia, that the Lunacy Regulation (Ireland) Act, 1871 fails to respect the rights of my clients under the Constitution of Ireland. If necessary a declaration of invalidity will be sought with regard to the procedures under this legislation and, in particular, the jurisdiction provided for under section 12 of the said Act.
I am also instructed that pending the determination of those proceedings, my clients require that you confirm by return that you will not proceed with the threats contained in your letters of the 7th January 2004 and the 9th February 2004.
I am further instructed that my clients are still of the belief that the course of action outlined in the above mentioned letters is unnecessary and unwarranted as the current well-being of Francis Dolan Junior can be established without resorting to such draconian actions. As the monies belonging to Francis Dolan are under the control of the High Court any concerns can be easily addressed. The family are willing to enter into meaningful discussion as to the disposition of the respondents at any time with your office. Such peremptory action as is outlined in your letters is unwarranted pending determination of the matter by the High Court.
Failing receipt of the above mentioned confirmation, I am instructed to seek interlocutory relief in the High Court without further notice.
Eugene F. Collins
“Francis Dolan Junior was born on the 26th April 1982. He has cerebral palsy and is handicapped physically and mentally. He is confined to a wheelchair. The plaintiffs accept that he is not capable of managing his affairs. He has had excellent care and attention from his parents, Francis Senior who is the second-named plaintiff and his mother Bernadette who is the third named plaintiff and also from his three sisters. No criticism is or could be made of the way he is being looked after by his family as a member of that family unit.”
Kelly J. quite correctly considered that there was a preliminary issue which had to be decided. Was the order made by the President in exercise of a judicial function or merely an exercise of an administrative function? The learned High Court judge pointed out that one High Court judge cannot injunct the carrying out of an order of another judge. Kelly J. (rightly in my view) came to the conclusion that the function exercised by the President had to be characterised as judicial and not administrative. He took the view that it was part and parcel of a judicial process, it being a necessary condition precedent to the hearing of an application for admission to wardship.
Although that determined the matter, the learned judge went on to express views on the merits of the application in case he was wrong on the preliminary point. This is what the judge had to say.
“The plaintiffs allege that the process should be stopped in its tracks because it is part of a process which leads inexorably to the making of a wardship order, an order which they strenuously object to. In support of this they allege that the wording of the legislation and their interpretation of some of the correspondence from the Registrar of Wards of Court supports that proposition. Counsel for the Registrar of Wards of Court on instructions has stated in open court that the plaintiffs need have no fear of a wardship order being made without them being provided with a full hearing before the President at which time they can both call evidence and make submissions and have a judicial determination on the topic. I should point out that such a hearing which has been proposed is not an ad hoc one being offered solely for the purpose of this hearing. Such a hearing is expressly provided for in Order 67, r. 6 of the Rule of the Superior Courts.”
“Dear Mr. Costello
I acknowledge receipt of your letter of the 16th December 2003 with enclosures. I have passed the same to the President of the High Court for his directions. The President has noted that the personal injury action 1997 No. 906/8P settled and was ruled on the 23rd October 2001. Notwithstanding this the funds have not yet been invested for the benefit of the plaintiff. Investment of the funds cannot be undertaken until such time as the plaintiff is made a Ward of Court. The plaintiff has further noted that his Medical Visitor has been denied access to the plaintiff. He is not prepared to allow this situation to continue. Unless confirmation is received by the Office of Wards of Court within fourteen days of the date of this letter that access will be afforded to the Medical Visitor, the President proposes to make an order directing the gardaí to secure such access. The delay in this matter is against the best interest of the plaintiff. Once the plaintiff is taken into wardship an inquiry will be directed as to the loss which has resulted from the delay and directions given as to the recovery of the same, in addition to the costs incurred by reason of the denial of access to the Medical Visitor. These steps are without prejudice to any other steps which the President may direct arising out of the manner in which the order of the court is being obstructed by Mr. Frank Dolan including, if necessary, his attachment and committal to prison.”
“It is I think important to emphasise that the jurisdiction of the High Court to take persons of unsound mind into wardship is and must always remain a discretionary jurisdiction. Where a person has property it is in my view open to the President of the High Court or to any judge exercising the jurisdiction on his designation to conclude that wardship is not necessary in any given circumstances either for the protection of that property or of the person of the respondent. Similar considerations must apply to an application brought to admit to wardship a person with no property. One of the matters on which the High Court must then exercise its discretion is as to whether wardship is necessary for the protection of the person who is the respondent in such proceedings.”
Health Board v. MK  2 I.R. 99 at 111.
The appellant’s parents are still not consoled because the inquiry by the President exercising his Wards of Court jurisdiction and to which Kelly J. was referring is the inquiry now directed by Finnegan P. (as he then was) but that is the inquiry to be conducted by judge and jury as to whether the appellant is a person of unsound mind and is to be preliminary to the hearing as to whether the appellant will be taken into wardship or not. The parents, however, from the very beginning have a rooted objection to any inquiry as to whether their child, in the particular circumstances, is a person of unsound mind partly because of nomenclature but also because they consider that the issue as to control of the monies has already been pre-determined. What the parents want is a determination by the High Court in advance of any consideration of the wardship issue as to whether an appropriate trust or some other arrangement can be arrived at which would allow them reasonable control of their child and that they be trusted within reason to decide how to apply the monies for the benefit of their son. Obviously, there would have to be some supervision by the court. The contention is that it need not entail wardship.
The constitutional action appears to be stalled and no reasonable steps have been taken to expedite it. In those circumstances, the President would have been quite right to have no regard to it in the decisions which he made. The President would, however, be obliged to have regard to the two notices of objection to a wardship inquiry filed on the 8th October 2004, one, on behalf of the appellant and the other, on behalf of the parents. These objections are quite detailed and raise some major constitutional issues that overlap with the constitutional action. I do not find it necessary to give any detailed account of them. What they do raise however is the issue of whether, having regard to the nature of the parents and the family circumstances, wardship would be necessary for the protection of the monies. The former President informally in open court and again indirectly through correspondence from the Registrar made it absolutely clear that in his view if the appellant (as appeared to be the case) was unable to look after his own property there was no jurisdiction to do anything else other than bring him into wardship. In particular, the learned President held that there was no jurisdiction to create a trust. He expressed this view on the basis that he had had to decide the issue in some previous cases and had formed this firm conclusion. But Finnegan P. showed particular and understandable concern that the monies were on deposit only under the superintendence of the Accountant of the High Court whereas if there was wardship they could be invested more profitably for the benefit of the appellant. It would seem to me that in all the confusion of the separate constitutional proceedings, the unsuccessful interlocutory motion in those proceedings, the formal objections in the Wards of Court proceedings (which may not have been given separate consideration), a side issue as to whether the parents had carried out a property investment without the permission of the court, the general lack of co-operation by the parents in the wardship procedures and the element which the President perceived of urgency in relation to the money being properly invested, not enough attention was paid to the fundamental and arguable objections which the parents had to the whole procedure. Insufficient importance was attached to the persistence of those objections and to the fact that they could not be characterised as in any way farfetched or frivolous. A narrow view was taken that in the Wards of Court proceedings a preliminary issue could not be set down in advance of the hearing of the inquiry as to whether there were other avenues open in relation to the protection of the appellant’s monies.
I have taken the view that the justice of the case requires that there be a preliminary issue of that nature and that there is no jurisdictional problem about setting it down. In order to justify the view which I have taken on the jurisdictional issue, I find it necessary to embark on a short history of the jurisdiction of the court in respect of the property of persons mentally or physically incapable of looking after it.
The history and nature of the Wards of Court jurisdiction has been neatly summarised by Finlay C.J. in In re D., Respondent, cited above. The former Chief Justice said the following at p. 452 of the report.
“The jurisdiction of the High Court in lunacy matters is provided for in s. 9 of the Courts (Supplemental Provisions) Act, 1961. Sub-sections 1 and 2of s. 9 read as follows:-
(b) was, at the passing of the Act of 1924, exercised by the Lord Chief Justice of Ireland, and
(c) was by virtue of subsection (1) of section 19 of the Act of 1924 and subsection (1) of section 9 of the Act of 1936, vested, immediately before the operative date in the existing High Court.
This view finds some support in the consultation paper of the Law Reform Commission “Law and the Elderly” where the Commission makes the comment at paragraph 4.10:
“Even if the parens patriae jurisdiction did not survive past 1922, it can be argued that the legislation outlined in the passage quoted from Hamilton C.J. at paragraph 4.04 (this was in the Supreme Court appeal In the Matter of a Ward of Court (Withholding Medical Treatment) (No. 2)  2 I.R. 79) provided a statutory basis for a new, but similar, jurisdiction which is now vested in the President of the High Court.”
In fact as I will be pointing out that jurisdiction is vested in the High
Court. The Commission goes on to comment that -
An important change came about by section 9 of the Courts of Justice Act, 1936 in that by that section the jurisdiction which had been personally vested in the Chief Justice by the 1924 Act became transferred to the former High Court though it was thenceforth to be exercised by the President of the High Court or, if and whenever the President so directed, by an ordinary judge of the High Court for the time being assigned in that behalf by the President. As Finlay C.J. pointed out, section 9 of the Courts (Supplemental Provisions) Act, 1961 expressly vested the jurisdiction in the High Court but repeated the provision that it would be exercisable by the President or a judge delegated by him.
For the purposes of this case the significance of the jurisdiction being vested in the High Court rather than in the President of the High Court personally means that wardship proceedings are High Court proceedings and all the normal procedural devices for litigating issues are available. I see no legal impediment, therefore, to an issue being tried in advance of the inquiry by judge and jury as to whether it was open to the President or whatever judge might be delegated by him to protect the monies recovered by the appellant by means other than making him a Ward of Court and if so whether such a course of action would be desirable in this case. I have in mind the creation of a trust or some formal scheme between the court and the parents involving suitable undertakings and suitable reporting arrangements. When I refer to a trust, I am not necessarily referring to it in its strictly technical sense. It is obviously the case that in the ordinary way only the owner of property can create a trust in relation to it and that owner cannot be an infant or of unsound mind. But some members of the court, at least, recall cases in which other arrangements were made by former Presidents though it is only fair to say that there may never have been formal argumentation as to the lawfulness or otherwise of such arrangements. I consider that it is only fair and just that this matter should be argued and litigated, as the parents request, before the inquiry before judge and jury takes place.
I consider that the case should be returned to the new President of the High Court, who by coincidence originally approved the settlement, so that either he or any other judge to whom he delegates the task should fully consider this issue. The wardship jurisdiction has never been regarded as adversarial and, therefore I consider that the Registrar of Wards of Court and the Office of the General Solicitor for Wards of Court should be requested to make a thorough investigation as to precedents. I believe that from time to time ever since the presidency of Finlay P. and possibly earlier, various presidents have, from time to time, secured appropriate arrangements through obviously caring parents so as to avoid the necessity of formal wardship. At least one other member of the court has a similar recollection. But recollection can be faulty and it may well be that one is not comparing like with like. All that this court has to decide at this stage is whether there should be a preliminary hearing of the kind that the parents require and, in my opinion, there should be and I have indicated the nature of it.
I would, therefore, allow the appeal and order that the case be remitted to the current President of the High Court for the purposes indicated in the judgment. The formal drafting of the issue should be left to him or such other judge as he may nominate after hearing submissions from relevant parties.
There are two matters to which I think it proper to refer. One is the factor which it would appear heavily influenced the former President of the High Court in insisting on quickly proceeding to the inquiry before judge and jury for the purposes of making the appellant a Ward of Court if found to be of unsound mind. This was the fact that the monies lodged in the High Court under the superintendence of the Accountant of the High Court were on a form of deposit whereas in the view of the President, the monies could be invested much more profitably if the appellant was a Ward of Court and the funds were managed by the Registrar of Wards of Court. Given that the monies are in fact on deposit and are earning interest and given that the issues raised by the parents are of such novelty and importance, I have taken a different view and believe that the preliminary issue should be determined. At the hearing of the appeal however before this court, no submissions were made as to what exactly are the respective investment rules applying to the Accountant of the High Court on the one hand and the Registrar of Wards of Court on the other hand and how flexible the jurisdiction of the President of the High Court might be in relation to investment in advance of a formal wardship order. This matter should be fully considered if this case is returned to the High Court with a view to achieving the best return on the monies pending the hearing and the final determination of the issue.
The second matter to which I wish to refer and which is related to the first matter is the issue of delay. As I have already indicated a distinction must be made between the constitutional proceedings on the one hand and the procedural objections raised in the Wards of Court proceedings on the other. For whatever reason there seems to have been a clear delay in pursuing the constitutional action and even though the appellant is named with the parents as a plaintiff, the President would be quite correct in not having any regard to those pending proceedings while determining what should be done in the wardship proceedings. On the other hand, I do not consider that there is any blameworthy delay on the part of the parents in the pursuance of their objections to the procedures being adopted on the wardship side. It would seem to me that their objections have been consistent from start to finish and I do not think that any delay issue can be taken against them whether in the interest of the appellant or otherwise.