S8 W. -v- Health Service Executive [2014] IESC 8 (19 February 2014)

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Cite as: [2014] IESC 8

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Judgment Title: W. -v- Health Service Executive

Neutral Citation: [2014] IESC 8

Supreme Court Record Number: 409/13

High Court Record Number: 2013 1699 SS

Date of Delivery: 19/02/2014

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Hardiman J., Fennelly J., O'Donnell Donal J.

Judgment by: Denham C.J.

Status of Judgment: Approved


Appeal No: 409/2013

Denham C.J.
Murray J.
Hardiman J.
Fennelly J.
O’Donnell J.
J.W. (a minor suing by his mother and next friend J.W.)


The Health Service Executive


(by order of the Supreme Court of the 18th October, 2013)


Notice Party

Judgment delivered on the 19th February, 2014 by Denham C.J.

1. This is an appeal by the minor appellant from the judgment and order of the High Court (Ryan J.) delivered on the 30th September, 2013, which refused the appellant’s application for relief under Article 40 of the Constitution.

2. Relevant dates are as follows:-

      Thursday the 26th September, 2013: 8 day emergency care order made by the District Court.

      Friday the 27th September, 2013: ex parte application made to High Court to open Article 40 enquiry.

      Saturday the 28th September, 2013: the High Court (Ryan J.) heard the Article 40 enquiry and reserved ruling over the weekend.

      Monday the 30th September, 2013: the High Court gave judgment and declined to order the release of the appellant.

      Tuesday the 1st October, 2013: appeal mentioned before the Supreme Court which, having been informed the matter was back before the District Court on Thursday, adjourned the appeal to Friday the 4th October, 2013, for mention.

      Thursday the 3rd October, 2013: following an extensive hearing the District Court declined to make an interim care order and the appellant was released back into the custody of his parents, the subject of supervision order with directions.

      Friday the 4th October, 2013: having been updated on this new development the Supreme Court fixed the 30th October, 2013, as the hearing date for submissions on the question of mootness.

      Wednesday the 16th October, 2013: the appellant's father issued a motion seeking to be joined to the appeal.

      Friday the 18th October, 2013: the motion was moved before the Supreme Court and the Court joined the appellant's father to the appeal, whilst making it clear that it was in no way indicating that he would be entitled to any costs order in his favour regardless of the outcome of the appeal.

3. A preliminary issue arises in this case as to whether the appeal is moot. The Health Service Executive, the respondent, referred to as “the respondent”, submitted that the appeal is now moot by reason of the hearing in the District Court on the 3rd October, 2013. It was submitted that as a matter of logic, you cannot hold an Article 40 inquiry when the person in issue is no longer in custody, as the only relief available is an order for the release of that person.

4. On behalf of the appellant it was submitted, inter alia, that it could not be said that there is no longer any dispute between the parties, and that there are issues of public importance, which are recurring in the District Court, which, it was submitted, made this an exceptional case which should be considered by the Court.

5. In oral submissions it was agreed by both parties that the appeal was moot. Thus, the only issue was whether the appeal fell within an exception to the general rule; the general rule being that appeals which are moot are not heard and determined by the Court, but that in exceptional circumstances the Court would exercise its discretion and hear the appeal.

An Exception?
6. Mr. O’Higgins S.C., counsel for the appellant, the minor, submitted that the appeal should be heard as there were a number of important legal points arising on the judgment of the High Court. He paraphrased these as including: (i) what he submitted was a finding that the mother need not be heard until the interim hearing; and (ii) the judgment’s approach to the decision D v. Groarke [1990] 1 I.R. 305, where he submitted it appeared to make a mandatory ruling discretionary.

7. The jurisprudence of this Court on the issue of mootness is well established. As Hardiman J. stated in G v. Collins [2005] 1 I.L.R.M. 1:-

      “Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs the eventual decision would be of no practical significance to the parties.”
8. There are exceptions to this general rule when the Court exercises a discretion and hears an appeal even though it is moot.

9. Instances when the Court has exercised its discretion to hear an appeal, notwithstanding that an appeal is moot, may be seen in the jurisprudence of the Court.

10. Thus, in Irwin v. Deasy [2010] IESC 35 Murray C.J. said:-

      “In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due proper administration of justice determine such a question.”
11. In O’Brien v. PIAB (No. 2) [2007] 1 I.R. 328, the Court also exercised a discretion and heard a moot appeal. Murray C.J. stated:-
      “Where, as in this case, a party has a bona fide interest in appealing against a declaratory order of the High Court which is not confined to past events peculiar to the particular case which has been resolved in one way or another, the court should be reluctant to deprive it of its constitutional right to appeal. In this case the respondent continues to be constrained in the exercise of public powers under statute by virtue of the declaration granted in the High Court at the instance of the applicant.”
12. In a test case, the Court may also exercise its discretion and hear a moot appeal. In Okunade v. The Minister for Justice, Equality and Law Reform & Ors [2013] 1 I.L.R.M. 1 at p. 11 Clarke J. stated:-
      “5.3 This case had, therefore, been, in a sense, designated as an appropriate test case by reference to which the broad issues which are addressed in this judgment were to be determined. That designation occurred at a time prior to the issue becoming moot by virtue of the decisions of Cross J. In those unusual circumstances the minister was anxious, and the court agreed, that this appeal should be heard notwithstanding the fact that the issue had, by the time the appeal actually came on for hearing, become moot. The unusual set of circumstances outlined above formed the basis for that decision. In addition it seemed to the court that any case in which this issue might arise was likely to become moot in a relatively short period of time for the issue concerns the proper approach that should pertain pending the hearing of a leave application. Each case of this type will, therefore, become moot when the leave application is heard. The problem which emerged in this case, being that arrangements for an expedited appeal had been set up with a date set but that the issue became moot by virtue of the hearing and determination of the leave application before the date was reached, has a significant risk of occurring in any other case. In those special circumstances this court felt that it was appropriate to hear the appeal notwithstanding its mootness.”

13. This is a case where an inquiry was sought pursuant to Article 40 of the Constitution. Thus, upon complaint being made by or on behalf of a person that he or she is being unlawfully detained, the High Court is required forthwith to enquire into the complaint. The relief in such proceedings is the release of the person, if he or she is found to be held in unlawful custody.

14. The appellant in this case is a minor. It was alleged that he had been unlawfully detained in custody by the emergency care order of the District Court order of the 26th September, 2013.

15. On the 30th September, 2013, the High Court refused the application for release.

16. The emergency District Court order was superseded by order of the District Court of the 3rd October, 2013. The minor is now back with his parents, subject to a supervisory order.

17. Habeas Corpus is a unique and important remedy, which may be sought swiftly to enable an inquiry into the detention of a person. The relief sought is the release of that person. It does not have a wider ambit. It is not a judicial review, nor is it a plenary summons.

18. In this case the minor has been released from the order that was queried and that order has been superseded. Thus, the issue is moot. According to the general rule, the Court would not hear such an appeal.

19. The parties agreed that the appeal is moot. Nevertheless, counsel for the appellant and the notice party submitted that the case comes within an exception to the general rule.

20. However, I am satisfied that the general rule applies to this case. The case is moot, no exception applies, and the appeal should not be heard, for the reasons set out below.

21. Counsel for the appellant raised two issues in particular in submissions, arguing that an exception to the general rule arose in this case. I shall take the second point first; the High Court judgment’s approach to the decision D. v. Groarke [1990] 1 I.R. 305, which counsel submitted appeared to make a mandatory ruling discretionary.

22. Even if the learned High Court judge had sought to vary the decision of this Court in D. v. Groarke, he would not have the jurisdiction to so do. However, I do not view the words of the learned High Court judge as taking any such approach. Whilst the phraseology may not have been the clearest, it should be remembered that the High Court judgment was delivered in the midst of an urgent hearing.

23. It is quite clear that the law as stated by this Court in D. v. Groarke remains unaltered by any reference in the judgment of the High Court. Thus, this is not a basis upon which to apply an exception to the general rule.

24. Counsel for the appellant submitted, as another reason why this appeal should be heard, that there was a finding by the High Court that the mother need not be heard until the interim hearing.

25. This was an emergency application by the HSE in relation to the baby, the child’s right to emergency protection, made in light of all the circumstances.

26. Counsel submitted that the baby’s mother was not given proper or sufficient notice of the application.

27. While it is true that there was a great deal of material furnished by the HSE to the mother with little time for consideration by her lawyers, all the circumstances and the nature of the application have to be borne in mind.

28. The judgment of the High Court in this case was fact based. The appellant is a baby. There was a claim that An Garda Síochána had detained the appellant’s parents while the emergency care application was heard. There were particular facts in this case, upon which the learned trial judge reached a decision.

29. The relevant law has been settled as set out in D. v. Groarke [1990] 1 I.R. 305. The High Court did not raise or apply any new principles.

30. The case was not argued or determined as a test case before the learned High Court judge.

31. Wider issues, as for example raised by the notice party, G.W., do not arise on this appeal. Consequently, there is no good reason to apply an exception to the general rule on this basis either.

32. The issue of an adjournment was also raised, but that is quintessentially a matter for a trial judge, and appeal courts are slow to intervene in the exercise of such discretion of a trial judge. This is particularly so where the High Court was hearing an urgent matter relating to the welfare of a child. Consequently, this too is not a good reason to employ an exception to the general rule that a moot appeal should not be heard.

33. I find no circumstances in this case such as to give rise to an exception to the rule, as occurred in cases such as O’Brien v. PIAB (No. 2) [2007] 1 I.R. 328 and Okunade v. The Minister for Justice, Equality and Law Reform & Ors [2013] 1 I.L.R.M. 1.

34. There is no issue of the constitutionality of s. 13 of the Child Care Act 1991, as amended, nor indeed of the interpretation of the statute.

35. This case was decided in the High Court on its particular facts. The decision of the learned High Court judge was fact based, it did not establish new principles, and as such raises no exception to the general rule as to moot appeals.

36. I have considered carefully the oral and written submissions of the parties, and can find no basis upon which this case falls into an exception in which the moot appeal should be heard.

37. Courts do not decide hypothetical or moot points of law unless there is a special jurisdiction such as under Article 26 of the Constitution, or in exceptional cases where it appears to the Court that there are compelling reasons why a court would consider hearing an issue that is moot.

38. This appeal is moot. The minor, the appellant, has been released, and so the remedy of habeas corpus is no longer relevant.

39. In light of the particular facts of the case, and the fact based nature of the judgment of the High Court, I do not consider that this moot appeal falls into any category of exception to the general rule. Consequently, I would not exercise a discretion to hear the appeal.

40. Therefore, for the reasons given, I would dismiss the appeal.

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URL: http://www.bailii.org/ie/cases/IESC/2014/S8.html