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Cite as:  IESC 60
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Judgment Title: O'S & anor -v- Doyle & ors
Neutral Citation:  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
THE SUPREME COURT
[Appeal No: 274/2013]
C.O’S. and T.B. (A minor suing by his mother and next friend C.O’S.)
Judgment of Mr. Justice MacMenamin, delivered on the 19th day of December, 2013
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:
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.”
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
(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.
(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.
Procedure in the High Court
Procedure in the Supreme Court
The statement seeking judicial review
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  1 I.R. 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
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:
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
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
The issue before the High Court
The family as recognised in the Constitution
"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."
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
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:
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
The welfare of the child
The extent of the natural father’s rights
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].”
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
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 Health Act 1953
38. Section 4 of the Health Act 1953 provides as follows:
(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)
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
42. This was a decision within the trial judge’s discretion (see the judgment of Keane C.J. in R.B. v A.S.  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.