Herron v. Ireland [1999] IEHC 112 (22nd February, 1999)

Judgment of Mr. Justice Quirke delivered on the 22nd day of February, 1999 I am dealing herein with three applications, that is to say:- (1) An application by the Applicant on foot of a Notice of Motion dated the 30th day of November, 1998 seeking to re-enter the proceedings herein and for additional relief having regard to an Order of the Supreme Court in these proceedings dated the 6th day of December, 1993; and (2) An application on behalf of the Respondents herein on foot of a Notice of Motion dated the 30th day of November, 1998 seeking directions as to the continued application of the said Order of the Supreme Court dated the 6th day of December, 1993; and (3) An application by the Applicant on foot of a Notice of Motion dated the 7th day of December, 1998 seeking to attach and commit certain named persons to prison for contempt of Court. 1. The proceedings herein which have a lengthy and complicated history were commenced by the Applicant in October of 1993 and comprised an application for relief by way of an Order of Mandamus requiring the Defendant to provide secure residential placement for the psychological assessment, diagnosis and treatment of her son, Niall Herron, who was then an infant aged 12 years. 2. By Order of the High Court Barron J. dated the 3rd day of November, 1993 it was ordered that the relief sought by the Applicant should stand refused. 3. The proceedings came before the Supreme Court on the 6th day of December, 1993 on foot of a notice of appeal dated the 8th day of November, 1993 whereupon after delivery of an ex-tempore judgment (Finlay C. J.) an Order was made dated the 6th day of December, 1993 directing, inter alia, that:- "(1) If the minor Niall Herron is returned to the State he is to be brought by the Garda Siochana before the High Court (Mr. Justice Barron) sitting at Dublin as soon as practicable. (2) Pending his being brought before the High Court as aforesaid the said minor may be lodged at St. Michael's House - the Applicant through her Counsel so consenting. (3) The question of what (if any) assessment of the said Niall Herron is to be carried out in St. Michael's House or elsewhere is to be determined by the High Court. (4) All further Orders concerning the welfare and place of residence of the said Niall Herron are matters for the High Court........" 4. In delivering the judgment of the Supreme Court which gave rise to the foregoing order Finlay C. J. was at pains to explain that:- "In making this order the Court emphasises that the arrangements it is making which are intended to meet the immediate situation if the boy is returned under the order of the English Courts to this country are made completely without prejudice to the rights or duties of the Southern Health Board in relation to the care of this child. I have asked the Attorney General through the Central Authority, which is the person involved for the Hague Convention, to inform the appropriate authorities in England including the Court of Appeal of the terms of the order that have been made. What I am anxious to do is to ensure that the Court of Appeal in England would be aware:- (a) That the child has got a place where, with his mother's consent, he can be sent on arrival here; and (b) that he is going to be legally represented." 5. That explanation was necessary because on the date of the making by the Supreme Court of the Order of the 6th day of December, 1993 Niall Herron was the subject of an application by the Applicant to the Court of Appeal in England for his return to this jurisdiction pursuant to the provisions of the Hague Convention (having allegedly been abducted to England by or on behalf of his father who is the estranged husband of the Applicant). In the event, the English Courts refused to return Niall Herron to this jurisdiction and this Court is not concerned with the reason for that refusal. 6. Niall Herron (also known as Niall Matthews) was born on 31st October, 1980 and accordingly he is now more than 18 years old and the Applicant has adduced evidence on affidavit indicating:- (a) that he has probably returned to this jurisdiction within the very recent past; and (b) that he has had psychiatric difficulties which have required treatment including in-patient treatment and that he has, on occasion, been homeless whilst in England and has required the provision of accommodation from the Social Welfare Services within that jurisdiction; and (c) there is also a possibility that he has been involved in petty crime. 7. The Applicant claims that the proceedings herein are still extant and that the Order of the Supreme Court dated the 6th day of December, 1993 remains in force and requires, inter alia, that Niall Herron, having returned to the State must be ".....brought by the Garda Siochana before the High Court ....sitting at Dublin as soon as practicable ....and that....pending his being brought before the High Court as aforesaid.....(he)....may be lodged at St. Michael's House..." 8. The Respondents argue that since Niall Herron has now attained his majority the Order of the Supreme Court dated the 6th day of December, 1993 is spent since it can only be construed as having an application to Niall Herron during his minority and that any other construction of the Order (particularly when read together with the judgment of Finlay C. J.) would have the effect of interfering with certain constitutional and other rights enjoyed by Niall Herron and depriving him of some of those rights. 9. There is a constitutional obligation on the State pursuant to the provisions of Article 42.5 of the Constitution to cater for the requirements of children who have "... very special needs" where those needs cannot be provided by the parents or guardians of such children - see F. N. -v- Minister for Education , [1995] 2 I. L. R. M. 297 (and see also G. -v- An Bord Uchtála , [1980] I. R. 32 and (more recently) D. B. -v- Minister for Justice , [1999] 1 ILRM 93 ). 10. The constitutional obligation arises in relation to (a) children (b) with very special needs (c) which cannot be provided by their parents or guardians. 11. It is contended on behalf of the Respondents that the obligation does not arise in respect of Niall Herron because (a) he is not a child (b) he does not have ".... very special needs..." (c) which cannot be provided by his parents or guardians. 12. The Applicant contends that the proceedings herein must be deemed to be an application made pursuant to the provisions of Section 11 of the Guardianship of Infants Act, 1964 (No. 7 of 1964) (hereafter referred to as "the 1964 Act"). 13. The relief sought herein (which was refused by Order of the High Court (Barron J.) dated the 3rd day of November, 1993) was relief by way of Judicial Review in the form of an Order of Mandamus requiring the Respondents to provide residential placement for psychological assessment, diagnosis and treatment of Niall Herron who was then aged 12 years. In the Statement of Grounds delivered on behalf of the Applicant dated the 5th day of October, 1993, the Applicant inter alia relied upon the following ground in support of her application:- ".... That under the provisions of the Guardianship of Infants Act, 1964 the welfare of the child is of paramount importance in proceedings before the Court and matters to be determined by the Court." Section of the 1964 Act provides inter alia that:- "(1) Any person being a guardian of an infant may apply to the Court for its direction on any question affecting the welfare of the infant and the Court may make such Order as it thinks proper...." Section of the Age of Majority Act, 1985 has had the effect of amending Section 11 of the 1964 Act by the addition thereto of the following sub-section:- "(5) Any reference to an infant in this section (except in paragraph (a) of Sub-section (2)) shall include a reference to a child who has attained the age of 18 years and is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully." 14. The Applicant comes within the definition of a "guardian of an infant" pursuant to the provisions of the 1964 Act and it cannot reasonably be suggested that the relief which she has sought herein does not comprise an application to this Court "... for its direction on any question affecting the welfare of the infant "...since it comprises an application to require the Respondents to provide residential placement and psychological assessment of Niall Herron". 15. Although Section 11 of the 1964 Act was intended primarily to deal with questions relating to custody, access and maintenance of children (this is clear from the provisions of Sub-section (2) thereof) I do not believe that the jurisdiction of this Court has been confined to such matters having regard to the provision in Sub-section (1) thereof to the intent that the Court may ".... make such Order as it thinks proper...." in respect of ".... any question affecting the welfare of the infant....". 16. Accordingly, since an application was made by the Applicant who was then a guardian of an infant on a question affecting the welfare of that infant, it follows that the "... reference to an infant..." shall include a reference to a child who "....has attained the age of 18 years and is suffering from mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully". Section of the Age of Majority Act, 1985 provides inter alia as follows:- "2-(1) Where a person has not attained the age of 21 years prior to the commencement of this Act he shall, subject to Section , attain full age - (a) on such commencement if he has attained the age of 18 years or is or has been married..... (4)(a) This section does not affect the construction of any reference to the age of 21 years.... in any statutory provision to which this sub-section applies. (b) This sub-section applies to: ..... any provision of the.... Guardianship of Infants Act, 1964 .... that provides for payments to be made for maintenance or support of children up to the age of 21 years." 17. Since Sub-section (2)(b) of Section 11 of the 1964 Act empowers the Court to "order the father or mother to pay towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the father or mother, the Court considers reasonable" and since an "infant" is defined within the 1964 Act as a "person under twenty-one years of age" it follows that Section 11 is a ".... provision of the.... Guardianship of Infants Act, 1964.... that provides for payments to be made for maintenance or support of children up to the age of 21 years". 18. In consequence, Section 2 of the Age of Majority Act, 1985 does not affect the construction of the word "infant" including the reference to the age of twenty-one years which is contained in the definition of the word "infant" in Section 2 of the 1964 Act. 19. It follows from the foregoing that this Court has jurisdiction to deal with the matters which are in issue in the proceedings herein notwithstanding the fact that Niall Herron is now more than 18 years old. 20. In the light of the Order of the Supreme Court herein dated the 6th day of December, 1993 I consider that it is appropriate that the proceedings herein be re-entered and I so order. 21. I note that the Order of the Supreme Court dated the 6th day of December, 1993 expressly recommended that legal representation for Niall Herron in the High Court be provided in accordance with the Attorney General's Scheme and that a Solicitor for that purpose be nominated by the President of the Incorporated Law Society and that such Solicitor should have authority to engage the services of one Senior and one Junior Counsel. I believe that it is appropriate that such legal representation be provided for Niall Herron forthwith and I require that steps be taken in that regard with immediate effect. 22. Thereafter the Court will hear such applications as may be made by and on behalf of the parties and of Niall Herron based upon such evidence as may be adduced and the parties will be facilitated in order to enable them to make such applications and adduce such evidence as they deem desirable. 23. I would stress however that I have pointed out to the parties that these proceedings must presently be viewed in the context that the relief sought by the Applicant has been refused by Order of the High Court (Barron J.) dated the 3rd day of November, 1993 and that the Order of the Supreme Court dated the 6th day of December, 1993 was made in the context described by Finlay C. J. as outlined earlier herein. 24. Insofar as the Applicant has herein sought the attachment and committal to prison of certain named persons for Contempt of Court, I regard her application as scandalous, vexatious and possibly mischievous. Not one shred of evidence has been adduced on behalf of the Applicant which would suggest that the named persons concerned acted in anything other than an exemplary manner in discharge of their various duties. 25. Accordingly, I have no hesitation in dismissing the application which has been made for the attachment and committal to prison of the persons concerned and will hear such submissions as to the costs of and incidental to that application as may be necessary. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII