Ipsofactoj.com: International Cases [2003] Part 3 Case 4 [SCIre]


SUPREME COURT OF IRELAND

Coram

The North Western Health Board

- vs -

H.W.

KEANE CJ

DENHAM J

HARDIMAN J

MURPHY J

MURRAY J

8 NOVEMBER 2001


Judgment

Keane CJ

INTRODUCTION

  1. The question posed by this case in the High Court and again in this court can be posed in relatively simple terms. Can the defendants, who are the parents of a 14 month old child, be required by an order of the court to permit the appellants to conduct a medical test - known as the P.K.U. test - on the child? It has, however, involved the court in an anxious consideration of issues the significance of which transcends the facts in the instant case.

  2. Those facts can be stated as follows. A test exists, known as the P.K.U. test, which enables it to be ascertained whether a child, who may look healthy and well, is suffering from certain biochemical or metabolic disorders which can be extremely serious but are also treatable if identified at an early stage. The test is generally carried out on a new-born infant between 72 hours of age and 120 hours of age to be most effective. Blood is dropped on to a card - known as a Guthrie card - which is then sent to the Childrens’ Hospital, Temple Street, Dublin where it is tested for four metabolic conditions and one endocrine condition. The four metabolic conditions are phenylketonuria, galactosaemia, homocystinuria and maple syrup urine disease. The endocrine condition is hypothyroidism. All the conditions in question cause either mental handicap or life threatening illness unless they are detected early.

  3. The incidents in Ireland of phenylketonuria is one of the highest in the world: 1: 4,500 infants suffer from it. In the case of galactosaemia the figure is approximately 1: 30,000 (with 1: 700 amongst travellers) and in the case of homocystinuria 1: 49,000. Those disorders would, as a result, be regarded as not uncommon. Maple syrup urine disease has an incidence of 1: 110,000 and hypothyroidism a frequency of 1: 200,300.

  4. Of these conditions, maple syrup urine disease and galactosaemia become apparent within the first week or four to five days of the child’s life. However, in the case of phenylketonuria, the symptoms may not be detected until a later stage: they may appear in the first two years of life but there are cases in which they are not identified until much later. In one instance in recent years, an eleven year old was detected for the first time. In the case of homocystinuria, the symptoms may not appear until the child is 2 to 2½ years of age, but again, it may not be possible to make the diagnosis until a later stage, ranging from 3 to 6 or 7 years of age. The symptoms of the very common condition of hypothyroidism can be subtle and not easily detected.

  5. The risk to the child of having the heel test done is minimal. Even where the test is carried out badly and incorrectly, the worst that could occur is that the little lancet which is used might introduce infection in the skin or at worst in the bone. There is no indication that this has ever happened since the test was first adopted in Ireland in 1966.

  6. In January 1998, a working group appointed by the Minister for Health furnished a report on metabolic disorders to the Minister. Their terms of reference were:

    To establish where the responsibility lies for ensuring that all new-born infants are screened for metabolic disorders;

    To recommend practices and procedures to ensure that all infants are screened for metabolic disorders;

    To facilitate a co-ordinated approach by all health boards to the stated objective.

  7. In their recommendations, the working group said that

    Screening for metabolic disorders must be considered an integral part of the management of new-born infants.

  8. They then went on to consider the responsibility of health boards, hospitals, health board community care services, general practitioners and midwives and parents for ensuring that every infant is so screened. They were of the view that the ultimate responsibility to ensure that the highest possible number of infants are screened should be placed on the health boards. Under the heading “Responsibility of Parents”, they said

    In the case of parents who refuse to allow their infant to be screened, the responsibility for the possible adverse consequences of their decision shifts to them.

    The parents should be requested to signify their refusal in writing.

  9. The working group went on to recommend the adoption of certain procedures to ensure that adequate records were maintained in hospitals to identify any infant who has not had the test carried out before discharge from the hospital. Special procedures were also recommended for adoption by persons working in the health board community care services to ensure so far as possible that the screening is carried out in the case of all new-born infants who are not born in hospitals.

  10. Appendix 1 contains more detailed medical information on the metabolic disorders in question. The report of the working group did not refer to the question as to whether the test should be made compulsory by legislation and no such legislation has been enacted. In accordance with the recommendations of the working group, the plaintiffs in these proceedings have accepted that, in their functional area, the ultimate responsibility for ensuring that the highest possible number of infants are screened for these orders rests on them.

  11. The first named defendant is a native of Germany who has resided in Ireland since 1990 and is married to the second named defendant. They have five children, of whom the youngest - referred to in these proceedings to protect his identity as “Paul” - was born on the 30th March 2000. Following their refusal to permit their fourth child, a girl, to be subjected to the test, the plaintiffs applied for and obtained an order under the provisions of the Child Care Act 1991 (hereafter “the 1991 Act”), the effect of which was to enable the plaintiffs to carry out the test notwithstanding the refusal of the defendants to consent to it. The defendants appealed from that decision, but eventually withdrew their appeal and the test was carried out. However, on the same day the District Court made a similar order in respect of another child which was subsequently reversed by the Circuit Court. In those circumstances, the plaintiffs were advised not to proceed by way of an application under the 1991 Act in the case of persons such as the defendants who withheld their consent to the test being applied to their children.

  12. On the 5th May 2000, the plaintiffs wrote to the defendants stating that they had been instructed that they had refused to have the P.K.U. test carried out on their youngest son. They said

    As you are aware our clients have general functions with regard to care and protection of children within its area and they cannot conceive of any circumstances which justify the refusal to have the PK test unit done. As pointed out previously there is no risk whatever in having the test done but on the other hand the absence of the test can have catastrophic consequences for the child should he or she suffer from one of the metabolic conditions which the test is designed to screen for. We would hope therefore that you would reconsider the decision to refuse the test for (Paul). In the event you continue to refuse however our clients feel compelled to bring the matter back before the courts in the interest of the child. Having regard to the .... Circuit Court decision which was made under the Child Care Act we believe that on a similar application to the District Court it would be bound by the previous decision of the Circuit Court. While an application could be made in the District Court to state a case on the legal issue for the opinion of the High Court, having regard to the child’s constitutional and natural rights we consider it appropriate in the alternative that a direct application be brought before the High Court seeking a mandatory injunction direct to you as the parents and guardians of the child to have the P.K.U. test carried out and in this way to have the legal issue determined by the superior courts once and for all.

  13. On the 11th May 2000, the first named defendant replied as follows to that letter:-

    As you know, the P.K.U. test is a test which can be carried out on different substances, such as urine, blood and hair samples. Our decision regards our son [Paul] is as follows: ‘We have no objection against the P.K.U. test being carried out, provided a test substance is used which can be obtained by non-invasive measures. This means in detail: we are prepared to supply the North Western Health Board with hair and urine samples for carrying out the P.K.U. test for our son [Paul]. We refuse to allow blood samples being taken, as those can only be obtained by invasive measures, such as puncturing a blood vessel. It is our strong religious belief, that nobody is allowed to injure anybody else. We hope that through this clarification, court proceedings can be averted.'

  14. The present proceedings were then issued in which the plaintiffs claim inter alia declarations that it is in the best interests of Paul that the P.K.U. test be carried out on him, and that the refusal of the defendants to consent to the carrying out of a P.K.U. test on him is a failure to vindicate his personal rights and a mandatory injunction requiring the defendants to furnish their consent to the execution of the P.K.U. test on Paul. An appearance having been entered on behalf of the defendants, the plaintiffs then applied for an interlocutory order permitting the plaintiff to carry out the P.K.U. test without the consent of the defendant and an interlocutory order restraining the defendants from impeding the carrying out by or on behalf of the plaintiff of the P.K.U. test.

  15. That application was grounded on two affidavits. The first was sworn by Dr. Eileen Naughton, a consultant paediatrician with a special interest in inherited metabolic disorders practising at Temple Street Childrens’ Hospital. Dr. Naughton said that she had studied paediatrics in Oxford and in London for 14 years and had secured a fellowship in metabolic medicine which she took up in Boston and the Childrens’ Hospital in Great Ormond Street, London. During that time she was a Harvard Fellow. She had been the first consultant in Ireland to be appointed to the particular speciality of inherited metabolic disorder and had been so practising for 14 years. Dr. Naughton’s evidence as to the nature, necessity for and defects (if any) of the P.K.U. test has already been summarised in this judgment.

  16. In a further affidavit grounding the application, Dr. Caroline Mason, the acting senior area medical officer of the plaintiffs for County Donegal, said that on Monday, 10th April 2000, Nurse E. Rose, an employee of the plaintiff, called unannounced at the defendants home where she was met by the first named defendant. Nurse Rose had been also involved in the attempts to have the older child of the defendants given the P.K.U. test. The first named defendant told Nurse Rose that the second named defendant and the baby, Paul, were out. She offered to call back later that day but was informed by the first named defendant that personnel of the plaintiff were not welcome at his home. He explained that this was “nothing personal” , but was due to his past and more recent experiences with the plaintiffs. He advised her that he was

    refusing the P.K.U. test and all immunisations for his son.

  17. In a replying affidavit, the first named defendant said that he had been born in Stuttgart, Germany on 2nd February 1957 and had resided in Ireland since 1990 or thereabouts. He married the second named defendant on the 7th December 1991. Prior to moving to Ireland, he worked as a quality assurance officer for the US Army in Germany. At present, he had a smallholding in Co. Donegal. His affidavit went on:-

    6.

    As has been indicated in [the affidavits grounding the application] the decision of myself and my wife in relation to our new-born son [Paul] is that we have no objection against a P.K.U. test being carried out as long as non-invasive measures were used. I strongly object in principle to blood being drawn by invasive measures as is used in gathering blood for the purpose of the P.K.U. test.

    7.

    I strongly believe that another human being should not be hurt and my son [Paul] will have his bodily integrity compromised and will be physically hurt as a result of this test being carried out . I object to a blood vessel being punctured for the purpose of this test. I have no objection to the test being carried out by way of non-invasive methods such as a urine sample or a hair sample. I have been informed that it is possible to carry out this test otherwise than by taking a blood sample. Indeed at paragraph 10 of the grounding affidavit of Caroline Mason sworn on behalf of the plaintiff, it is implicitly accepted that urine testing and hair sample testing is possible although she avers that this method would not be as effective as blood testing.

    8.

    Urine testing was the method whereby this test was carried out in the United Kingdom until the 1960’s and the urine test was abandoned in the 1960’s in favour of the blood sample.

  18. The first named defendant went on to say that the decision they had come to had been taken jointly and after careful consideration and that it was “a decision rightly made by the child’s parents as opposed to the organs of the State”.

  19. Having referred to the incidents of the conditions as deposed to in Dr. Naughton’s affidavit, the first named defendant averred that, as none of his four other children had been identified as having any of the conditions, it was even less likely that Paul would be so identified. He also said that, as Paul was only 50% of Celtic blood, the risk factor would be less. He said that neither he nor the second named defendant was aware of any incidence of these conditions in their relatives.

  20. The first named defendant said that his family had undergone “a very upsetting experience” when their daughter had the test done at the age of 9 months and that the child “became very unsettled” for a long period afterwards.

  21. The second named defendant in an affidavit said that

    The decision made in this case is not made lightly but after careful and indeed anxious thought in the light of our own experiences and our strongly held personal beliefs that it is wrong to inflict suffering on others, particularly our own children.

  22. She also referred to their daughter as having been “very upset and out of sorts” for a long period after the test and that she had found the whole episode “extremely distressing”. She said that her emotional well-being and mental health suffered as a result.

  23. The plaintiffs’ motion seeking interlocutory relief was heard by McCracken J. The only oral evidence at the hearing was given by Dr. Naughton. Referring to what trauma, if any, the procedure caused for the child, she said

    It varies from situation to situation. Minimal I would describe as the child giving a sharp cry and withdrawing the limb. Sometimes the baby does not even wake or cry but sleeps through it. I have seen children breast fed through it. It depends on the state of the child and the person holding the child coming up to the test. If the baby is already struggling and not in a contented state of mind or body, it can struggle.

    Q9

    Is there any lasting or continuing pain affecting the child, as far as one can determine, once the lancet is withdrawn

    A

    Insofar as us observers can determine, there isn’t.

    Q10

    But in terms of your experience in relation to the carrying out of this test, the view is that once the lancet is withdrawn the painful experience ceases is that correct?

    A

    Yes.

  24. Dr. Naughton said that the fact that other children had not manifested the conditions in question did not prove that it did not genetically exist within the family. She had looked after many families where they have had one or two children already and that the screening had then shown up the fact that both parents were carriers. They would have had no knowledge of that until the positive result of a test. She said that the parents could not be themselves tested to see whether they were carriers. However, once the baby was identified as suffering from the condition, the parents were then identified as carriers. If both parents were carriers, there was a one - in - four risk at each conception of the child inheriting one or other of the conditions.

  25. Dr. Naughton said that, so far as phenylketonuria was concerned, severe mental handicap would be the principal consequence, manifesting itself in a reduction of the child’s I.Q., to a point where they become totally dependent on others, never achieving an independent existence. While the conditions were capable of being improved to a degree, there was no effective treatment if it was left too late. If the condition was identified early enough, the child would be expected to achieve its normal potential I.Q. and normal potential well-being. Dr. Naughton said that hypothyroidism would give rise to severe mental handicap, classically manifesting itself in a dislocation of the lens of the eye at approximately two years of age. The child might also die young from strokes and emboli to the lungs.

  26. In the case of all these conditions, she said that these were the more severe manifestations. There could also be more minor consequences but it was most unlikely that the condition would be without any adverse consequences.

  27. As to maple syrup disease, Dr. Naughton said

    In one particular family in Ireland, the family which dictated we should screen despite a low incidence, five children died in the month after birth. They can present with irritation of the brain as if they had meningitis but it is actually the metabolic toxicity from the amino acids which is causing the presentation. If they don’t die they are left with severe cerebral palsy.

  28. In the case of galactosaemia, children would get damage to their livers and, as a result, a coagulation problem where they bleed into their primary organs such as the brain and the heart. A child died in Ireland every couple of years from galactosaemia, even despite the screening, because of the severe nature of the condition.

  29. Dr. Naughton agreed in cross examination that there was a possibility of “false positives” in the system. She also agreed that other tests had been used prior to the Guthrie test and said of them

    there were in use when there was no other means available. It is internationally recognised that the blood test is more reliable.

  30. She said that the alternative tests would now be rarely carried out, except in undeveloped countries where they might not have the blood tests available to them.

  31. Dr. Naughton said that the Irish screening programme was one of the models for national screening: it was modelled on the Massachusetts screening in the United States. As to the screening programme in the United Kingdom, she said that, while it was excellent, it was concerned with a different set of conditions because of the particular genetic mix and the frequency of recurrence of conditions in that country. They did not screen for homocystinuria or galactosaemia, although there was an international recommendation that they should, and they did not screen for maple syrup urine disease.

  32. Dr. Naughton said that the screening programmes in the U.K., other European countries and the United States were voluntary: the procedure adopted everywhere was to ensure that parents had been well informed and accepted responsibility by signing a “refusal-to-screen form”.

  33. In re-examination, Dr. Naughton referred to the suggested alternative methods in the following passage:

    Q93

    You have explained on affidavit that both the urine and the hair test are not as reliable as the blood test, isn’t that right?

    A

    I think the hair wouldn’t even be considered as reliable or unreliable. The urine is only helpful when it is positive which means that the blood test is already very high. We pick up many children when they have a very definite elevation of phenylalanine but the urine has not yet become positive.

    Q94

    So the condition is at a more advanced stage when it is picked up in the urine?

    A

    That’s right.

    Q95

    With the consequences you have already described for the treatment?

    A

    That’s correct.

    Q96

    I think that you and the working group have identified that you can have false positives and negatives. However, the unanimous view is that the test is, on the whole, a reliable test?

    A

    Absolutely.

  34. It also appears from the evidence that during any one year the number of parents nation-wide who have refused to have the test is not more than six.

    THE HIGH COURT JUDGMENT

  35. In his judgment, the learned High Court judge said that, while it was clear that under Article 40.3.2 of the Constitution there was a duty on the State to protect, defend and vindicate the personal rights of the citizens, this obligation was not unlimited or universal. Having said that the obligations of the State under the Article had been applied in a number of cases dealing with children, he went on to say:-

    However, these were not cases in which there was any conflict between the duties of the State and the rights of parents, as these cases, and others like them, dealt with children who were either without parents or were outside parental control. In such cases, there is undoubtedly a duty on the State to vindicate the rights of these children where there is nobody else to do so. A number of cases have been opened to me from other jurisdictions regarding the inherent rights of a court to interfere or provide for children, but I find them of little assistance, as there are no equivalent provisions to Article 42 of our Constitution in those jurisdictions.

  36. The trial judge also commented that it was quite clear from Article 42.5 of the Constitution that such a jurisdiction only existed in exceptional cases

    where the parents for physical or moral reasons fail in their duty towards their children.

  37. As to the instant case, he said

    There is no doubt that medical opinion would emphatically state that it is in Paul’s interest to have the P.K.U. test done, to ascertain whether he may in fact suffer from any of the conditions tested for. Objectively, on all the evidence before me, this is certainly so. The question I have to answer is whether this objective benefit to Paul overrides the rights of his parents, in effect, to decide that they do not want Paul to have the discomfort, and discomfort is as strong a word as could be used for it, of a pinprick in his heel, and are prepared to take the risk that he does not suffer from any of the relevant conditions.

  38. Having referred to the fact that parents constantly make decisions of this nature and subject their children to risks which objectively might not be justified and which could have disastrous results - such as allowing a child to cycle to school on a busy road - he went on

    In the medical field, the State provides many facilities for the protection of children, such as inoculation and vaccinations, but it does not compel the parents to have their children inoculated or vaccinated. There is in fact a far stronger case to be made that some vaccinations should be compulsory in the common good, where the vaccination is against an infectious disease such as diphtheria or meningitis, but the State have chosen to leave it to the decision of the parents to have these vaccinations.

  39. He summed up his conclusion as follows:-

    In my view the decision in the present case by the defendants, who are acknowledged to be caring and conscientious parents, could not be said to constitute an exceptional case, even though the general medical opinion would be quite clear that such a decision was wrong. If the State were entitled to intervene in every case where professional opinion differed from that of parents, or where the State considered the parents were wrong in a decision, we would be rapidly stepping towards the Brave New World in which the State always knows best. In my view that situation would be totally at variance with both the spirit and the word of the Constitution.

  40. He also said that the wording of Article 40.3.2 did not provide in his view, a constitutional justification for the intervention by the plaintiff in this case. He said that the “unjust attack” or “injustice done” referred to in the article could only be the refusal of the defendants to allow the test to be carried out on Paul. Apart from the fact that he did not consider this to be an injustice to Paul, he said that, even if he were wrong, the State has not chosen to use its laws to protect Paul in the manner envisaged by Article 40.3.2. He said that if the State believed that it had an obligation to make it unlawful for parents to refuse to allow their children to undergo tests such as this, the State through the Oireachtas could so provide in legislation and that legislation could then be tested in the courts for its constitutionality.

  41. In the result, the trial judge refused the application of the plaintiffs. From that judgment and order the plaintiffs now appeal to this court.

    SUBMISSION ON BEHALF OF THE PARTIES

  42. On behalf of the appellants, Mr. Paul Gallagher S.C. submitted that the jurisdiction of the court to make the orders sought derived from three separate sources. The first was the constitutional jurisdiction of the High Court to intervene so as to protect the interests of a minor where his or her personal rights were under threat. He submitted that this was clearly established by a series of decisions commencing with G. v An Bord Uachtála (1980) IR 32 and had been confirmed by the decisions of this court in F.N. v The Minister for Education (1997) 1 IR 409 and D.G. v Eastern Health Board (1998) 1 ILRM 241. He said that it was clear from those decisions that the High Court had a jurisdiction to direct the undertaking of a procedure which was no more than marginally invasive and which was designed to secure the health and welfare of a child in circumstances where his or her parents did not consent to the procedure. He submitted that the failure of the defendants to consent to the carrying out of this test had created a situation in which, for no compelling or countervailing reason, the life and bodily integrity of the child were being threatened and in circumstances in which the child could not himself make an informed determination as to whether or not the risks consequent upon the failure to administer the test should in fact be taken. He submitted that, in accordance with the principles laid down in The State (Quinn) v Ryan (1965) IR 70, 122, this court should hold that the powers of the High Court in the protection of the child’s constitutional rights were as ample as the defence of the Constitution required.

  43. Mr. Gallagher submitted that the second basis for the jurisdiction was the inherent jurisdiction of the court to grant relief of this nature in the case of minors, irrespective of whether they were wards of court or not. He said that the existence of what was sometimes described as the parens patriae jurisdiction in cases such as the present had been recognised by the English courts in cases such as Re E (a minor) (1990) 9 BMLR 1, Re W. (a minor) (1992) 4 All ER 648, Re O. (1993) 4 Med LR 272; Re B. (1981) 1 WLR 1421 and Re C. (a child) HIV test (1999) 3 FCR 289. He submitted that this jurisdiction, despite its historical origin in the royal prerogative, existed in Ireland, as the decisions already referred to had made clear. In the case of persons in wardship, it was now derived from the Courts (Supplemental Provisions) Act 1961, which kept in being the jurisdiction at one time exercised by the Lord Chancellor of Ireland and the Lord Chief Justice of Ireland. The authorities already referred to put it beyond doubt that the jurisdiction also existed in similar cases where the child was not a ward.

  44. Mr. Gallagher submitted that in any proceedings concerning the custody, guardianship or upbringing of an infant, the court must be guided by the principle that the welfare of the child is the first and paramount consideration, referring in this context to s. 3 of the Guardianship of Infants Act 1964 and the decision in Southern Health Board v C.H. (1996) IR 219, 237. He said that the evidence in this case overwhelmingly established that the administration of the test was clearly in the best interests of the child and this, indeed, had been so found by the trial judge.

  45. Mr. Gallagher said that, while a case of this nature had not hitherto come before the Irish courts, there are helpful precedents from other jurisdictions. Thus, in Re C. (a child) (HIV test), (2000 1 WLR 2) the English High Court had directed that a six months old baby, whose mother was HIV positive, should be subjected to a blood test with a view to determining whether she was also infected: the court had so determined on the basis that the advantages to the child of the proposed test were very substantial and that the case for testing the child was “overwhelming”. The English courts in that case and the subsequent decision of the Court of Appeal in Re T. (a minor) (Wardship: Medical Treatment) (1997) 1 All E.R. 906 had treated as an obvious and important consideration the wishes of the parents in the matter but had concluded that in some cases at least the best interests of the child required the medical intervention in issue: in other cases those interests, the courts had concluded, might be better served by entrusting the decision to parents. Mr. Gallagher submitted that a similar approach should be adopted in this jurisdiction, having regard to the observations of Ó Dálaigh C.J. in Ryan v Attorney General (1965) IR 294, the case concerning the introduction of fluoride into drinking water. He also cited the observation of Walsh J. in G. v An Bord Uachtála that one of the duties of parents was to provide as best they could for the welfare of their children and to ward off dangers to their health.

  46. As to the fact that the Oireachtas has not enacted legislation providing that the P.K.U. test should be compulsory, Mr. Gallagher submitted that the emphasis placed by the trial judge on this fact was misplaced. He said that the jurisprudence of this court had established that, where a threat to a child’s rights to bodily integrity, health and life were established, the absence of legislation could not oust the jurisdiction of the court to uphold the child’s rights. He cited in this connection the decisions in The State (Quinn) v Ryan and Meskill v C.I.E. (1973) IR 121 and the statement of the law in Kelly on The Irish Constitution (3rd Ed.) at p. 1047. He further urged that the conclusion of the trial judge that, if the State wished to make the test compulsory, it should legislate to that effect on the basis that the legislation could then be tested in the courts for its constitutionality was difficult to reconcile with his conclusion that a compulsory administration of the test would be totally at variance with the spirit and the word of the Constitution.

  47. Mr. Gallagher also submitted that the trial judge was wrong in law in holding that the jurisdiction of the court to intervene in decisions falling within the concept of parental authority was defined and limited by the provisions of Article 42.5 of the Constitution. He said that, on the contrary, it had been made clear in the decision of this court in Re J.H. (1985) IR 375 that the power of the court to intervene in the interests of the child was not confined to cases coming within Article 42.5, but extended to cases where the child’s rights fell to be considered under other Articles, such as Article 42.1, where there were compelling reasons for such intervention. However, even if the instant case fell to be decided solely by reference to Article 42.5, he submitted that there were indeed exceptional circumstances in the present case which made it imperative for the court to intervene.

  48. On behalf of the defendants, Mr. Donal O’Donnell S.C. submitted that the essential issue raised by the case was as to whether the decision of the defendants, as the parents of the child, could be overridden and, if so, by what body and by reference to what legal and constitutional standards. He said that the decision as to the P.K.U. test was only one of a vast range of decisions that parents of infants make on their behalf and which were by no means limited to medical procedures. He said that few of these decisions had been overridden by the courts or sought to be overridden, even where they appeared wrong or even reckless. He submitted that, while some parental decisions on behalf of a child in relation to medical or health procedures could be overridden by a court - e.g. a refusal to sanction a blood transfusion in a life threatening situation - there were also parental decisions which clearly could not, e.g. a refusal to consent to vaccination for a range of diseases. Mr. O’Donnell submitted that the plaintiffs had failed to establish a principled basis for distinguishing the present case from the many other difficult decisions which are routinely made by parents and not reviewed by the courts. He said that an exceptional intervention of the kind proposed in this case could only be justified in the case of a functioning family where it was clearly necessary to save the life or protect the health of a child from an immediate and serious threat.

  49. Mr. O’Donnell submitted that, if the orders sought in the present case could be granted, it would in effect make this test compulsory for all children on pain of a coercive sanction against their parents: in such a situation, the consent procedure now being operated would become meaningless, since only one answer was permissible to the request for consent. It would also follow that the State had been in breach of its duty to children for at least thirty years during which it had, at its own cost, maintained a voluntary scheme. Mr. O’Donnell urged that the decision to make any medical procedure compulsory was a complex and difficult one, which one would have expected to have been collectively taken by the Oireachtas after a report by an expert group and public debate. Thereafter, the resulting legislation could be tested by constitutional challenge, whereas, in the present case, the appellants were contending that the matter could be conclusively decided by the decision of the court, however inadequate the evidence.

  50. Mr. O’Donnell submitted that the test proposed by the appellants for determining whether the screening should be ordered by the court excluded the parents completely from the decision making process. He said that this was not the appropriate test. The weight of medical opinion in favour of the P.K.U. test was clear: whether the order should be made or not was dependent on the weight to be given to the concept of parental autonomy. While that factor of itself might well in the present case point to the decision being made by the parents rather than the plaintiffs or the court, in this jurisdiction the relevant provisions of the Constitution brought down the scales even more decisively in favour of family and parental autonomy.

  51. Mr. O’Donnell submitted that the provisions of Article 42 of the Constitution were inconsistent with the concept of a parens patriae jurisdiction based on the principle that the sovereign knows best. In this jurisdiction, the general rule was that parents should be left to do their best, even if individual decisions appear wrong, perhaps clearly wrong, save in exceptional circumstances where there was a direct and serious threat to the health or life of the child. He submitted that neither the State nor the courts were in a position to provide security and comfort for the child during its early life and that, accordingly, the family, with all its complications, imperfections and difficulties, provided the surest route by which this desirable care could be provided. He cited in this connection the observations of a leading US commentator on childrens’ rights, i.e. Goldstein “Medical care for the Child at risk: on State supervention of parental autonomy”, 86 Yale Law Journal 619.

  52. Mr. O’Donnell submitted that the English decision of Re C. (a child) HIV test was distinguishable, since in that case the consequence of the court’s decision was not the compulsory imposition of a particular test on a nation-wide basis, but rather a requirement that a test should be carried out in the circumstances of the particular case. He also submitted that the observations of Ó Dálaigh C.J. in Ryan v The Attorney General relied on by the plaintiffs were made in a different context: in that case, the plaintiffs were effectively seeking to prevent everyone from having the benefit of fluoridated water, whereas in this case the parents merely sought an exemption for themselves.

  53. Mr. O’Donnell further submitted that the High Court had been invited in this case to make what was effectively a decision of general application on matters of social policy, striking a delicate balance of rights and interests which was peculiarly within the province of the Oireachtas and that this was in breach of the separation of powers. He cited in this context the observations of this court in In re Article 26 & the Information (Termination of Pregnancies) Bill 1995, of the Supreme Court of Canada in Re Eve (1984) 31 DLR 1 and of the Australian High Court and Family Court respectively in Secretary, Department of Health & Community Services v J.W.B. & S.N.B. (Marion’s case) (1991-1992) CLR 218 and L&G.M. v M.M. (Medical Law Review) (1995) 3, 94. He also cited s. 4 of the Health Act 1953 as reflecting the clear policy of the Oireachtas that parents should not be obliged contrary to their wishes to submit their children to “health examination or treatment”.

    THE APPLICABLE LAW

  54. Since, in instituting the proceedings in the present case, the plaintiffs were mindful of their statutory duties and functions under the Child Care Act 1991, the relevant provisions of that Act should be set out.

    Section 3 provides that

    (1)

    It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

    (2)

    In the performance of this function, a health board shall -

    (a)

    take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

    (b)

    having regard to the rights and duties of parents, whether under the Constitution or otherwise-

    (i)

    regard the welfare of the child as the first and paramount consideration, and

    (ii)

    in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child, and

    (c)

    have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

  55. Section 16 provides that

    Where it appears to a health board with respect to a child who resides or is found in its area that he requires care or protection which he is unlikely to receive unless a court makes a care order or a supervision order in respect of him, it shall be the duty of the health board to make application for a care order or a supervision order, as it thinks fit.

  56. Section 17 provides for the making of an “interim care order” by a judge of the District Court. Section 18 provides that

    (1)

    Where, on the application of a health board with respect to a child who resides or is found in its area, the court is satisfied that

    (a)

    the child has been or is being assaulted, ill-treated, neglected or sexual abused, or

    (b)

    the child’s health, development or welfare has been or is being avoidably impaired or neglected, or

    (c)

    the child’s health, development or welfare is likely to be avoidably impaired or neglected,

    and that the child requires care or protection which he is unlikely to receive unless the court makes an order under this section, the court may make an order (in this Act referred to as a ‘care order’) in respect of the child.

  57. Such a care order commits the child to the care of the health board for as long as he remains a child or for such shorter period as the court may determine. Sub-section (3) requires a health board, where a care order is in force, to give consent “to any necessary, medical or psychiatric examination, treatment or assessment with respect to the child”. Sub-section (4) provides that such a consent is to be sufficient authority for the carrying out of the examination or assessment in question.

  58. Section 19 entitles the court, again on the application of the health board, to make a “supervision order” on the same grounds as a care order can be made and where it is desirable that the child be visited periodically by or on behalf of the board. Sub-section (4) provides that, where such a supervision order is made, the court may, on the application of the health board

    give such directions as it sees fit as to the care of the child, which may require the parents of the child or a person acting in loco parents to cause him to attend for medical or psychiatric examination, treatment or assessment at a hospital, clinic or other place specified by the court.

  59. Sub-section (5) then goes on to provide penalties - including at the court’s discretion imprisonment for a term not exceeding six months - where any person fails to comply with the terms of a supervision order.

  60. As already noted, the plaintiffs in this case sought to operate the provisions of the 1991 Act in the case of the defendants’ fourth child but, following the decision in the Circuit Court, decided in the present case to proceed by way of an application to the High Court.

  61. Article 40.3 of the Constitution provides inter alia that

    (1)

    The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

    (2)

    The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

    Under the heading “The Family”, Article 41.1 provides that

    1

    The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

    2

    The State, therefore, guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

    Article 42.1 under the heading “Education”, says

    The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

    Article 42.5 under the same heading provides that

    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.

  62. These articles are described in Kelly on The Irish Constitution, 3rd Ed. p.991 as “among the most innovatory in the entire Constitution”. The learned editors also comment that the articles are generally thought to have been inspired by papal encyclicals and by Catholic teaching: they point out, however, that the 1919 Weimar Constitution contained a declaration of the special status, and the State’s special protection, of marriage and motherhood, as well as of parents’ rights and duties.

  63. While Article 12 of the European Convention on Human Rights and Fundamental Freedoms acknowledges the right of everyone to respect for his family life, neither the Canadian Charter of Rights and Freedoms nor the Commonwealth of Australia Constitution Act - to mention two jurisdictions precedents from which were cited in the submissions - contain any articles equivalent to those contained in our Constitution.

  64. Article 41.1 acknowledges the primary role of the family in society. In philosophic terms, it existed as a unit in human society before other social units and, in particular, before the unit of the State itself. The philosophical origins of the modern system of democracy are to be found in the beliefs of Locke and Rousseau that civil government is the result of a contract between the people and their rulers: the family existed before that unit and enjoys rights which, in the hierarchy of rights posited by the Constitution, are superior to those which are the result of the positive laws created by the State itself. As the trial judge noted, this is an express recognition by the framers of the Constitution of the natural law theory of human rights, but the belief that the family occupies that philosophic status in contrast to the role of the State is by no means confined to those thinkers who subscribe to that particular philosophy.

  65. What is beyond argument is that the emphatic language used by the Constitution in Article 41 reflects the Christian belief that the greatest of human virtues is love which, in its necessarily imperfect human form, reflects the divine love of the creator for all his creation. Of the various forms which human love can take, the love of parents for their children is the purest and most protective, at least in that period of their development when they are so dependant on, and in need of, that love and protection. I believe that Article 41, although couched in the language of “rights”, should not be seen as denying the truth to be derived from the experience of life itself, that parents do not pause to think of their “rights” as against the State, still less as against their children, but rather of the responsibilities which they joyfully assume for their childrens’ happiness and welfare, however difficult the discharge of those responsibilities may be in the sorrows and difficulties almost inseparable from the development of every human being. The rights acknowledged in Article 41 are both the rights of the family as an institution, and the rights of its individual members, which also are guaranteed in Article 42, under the heading “Education”, and which also derive protection from other articles of the Constitution, most notably Article 40.3.

  66. Again, the Article speaks, not of the authority of parents, but of the authority of the family. While the family, because it derives from the natural order and is not the creation of civil society, does not, either under the Constitution or positive law, take the form of a juristic entity, it is endowed with an authority which the Constitution recognises as being superior even to the authority of the State itself. While there may inevitably be tensions between laws enacted by the State for the common good of society as a whole and the unique status of the family within that society, the Constitution firmly outlaws any attempt by the State in its laws or its executive actions to usurp the exclusive and privileged role of the family in the social order.

  67. The family as a concept is, of course, meaningless divorced from the individuals of which it is composed. This leads to an important consequence in the context of the present case identified in the following passage from the judgment of Ellis J. in P.W. v A.W. (unreported); (judgment delivered 21st April 1980):

    In my opinion, the inalienable and imprescriptible rights of the family under Article 41 of the Constitution attach to each member of the family including the children. Therefore in my view the only way the ‘inalienable and imprescriptible’ and ‘natural and imprescriptible’ rights of the child can be protected is by the courts treating the welfare of the child as the paramount consideration in all disputes as to its custody, including disputes between a parent and a stranger. I take the view also that the child has the personal right to have its welfare regarded as the paramount consideration in any such dispute as to its custody under Article 40.3 and that this right of the infant can additionally arise from ‘the Christian and democratic nature of the State’.

  68. That was a case concerned with the custody of a child. However, I am satisfied that the statement of the law by the learned judge is of general application, although it clearly must be viewed in the light of the later decision of this court in In Re J.H. (an infant).

  69. In that case, an infant girl, who was the subject of the proceedings, was placed in foster care by her natural mother one week after her birth and for adoption within three months of her birth. The natural mother later married the father of the infant and in subsequent correspondence with the Adoption Society refused to give her consent to an order for the infant’s adoption. Proceedings having been brought both under the Adoption Act 1974 and the Guardianship of Infants Act 1964 in which the natural parents and the adoptive parents both sought custody of the child, the case was heard in the High Court. During the hearing, there was psychiatric evidence indicating that there was a risk of long term psychological harm to the infant if custody was transferred from the adopting parents to the natural parents. In this court, Finlay C.J. said that the infant had, in addition to the rights of every child, rights under the Constitution as a member of a family which he defined as follows:-

    (a)

    To belong to a unit group possessing inalienable and imprescriptible rights antecedent and superior to all positive law (Article 41, s. 1);

    (b)

    To protection by the State of the family to which it belongs (Article 41, s. 2);

    (c)

    To be educated by the family and to be provided by its parents with religious, moral, intellectual, physical and social education (Article 42, s. 1).

  70. Having pointed out that the child in that case, who was in the custody of persons other than its parents, contrary to their wishes, could not be said to enjoy the right of education by her family and parents “granted by Article 42, s. 1 of the Constitution”, the learned Chief Justice said that, notwithstanding the presumption of validity which attached to the Guardianship of Infants Act 1964, the court could not supplant the constitutional right to education by its family and parents unless there was established to the satisfaction of the court a failure on the part of the parent as defined in Article 42.5 and “exceptional circumstances”. He summed up his conclusions as follows:-

    I would, therefore, accept the contention that in this case s. 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in s. 2 of the Act in terms identical to those contained in Article 42.1, is to be found within the family, unless the court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and to continue to fail to provide education for the child for moral or physical reasons.

  71. It will be seen that In Re J.H., (like W. v W.), was concerned with a dispute as to the custody of a child between its parents or parent and a stranger or putative adoptive parents. A question, accordingly, arose, with which this court is not concerned in the present case, as to whether in resolving such a custody dispute under the 1964 Act, the court was obliged to presume that the welfare of the child would best be served by its being brought up within the family, unless there were “compelling reasons” for holding the contrary or, alternatively, the evidence satisfied the court that this was an exceptional case of the parents having failed in their duty within the terms of Article 42.5. Those issues do not arise in this case: irrespective of its outcome, Paul will remain in the custody of his parents and his right to remain a member of the family whose authority is protected by the Constitution will be unaffected. The statement of the law by Ellis J. that the rights of the family under Article 41 attach to each member of the family, including the children, and that the only way that those rights can be protected in the case of children is by the courts treating the welfare of the child as the paramount consideration do not have to be read in cases other than custody cases subject to the qualification laid down by the court in In Re J.H. (an infant).

  72. Article 41.1 was further considered by this court in In Re Article 26 of the Constitution & the Adoption (No. 2) Bill, 1987. Giving the judgment of the court, Finlay C.J., having referred to the provisions of Article 41.1, Article 42.3 and .5 and Article 40.3.1 and 2 said

    The rights of a child who is a member of a family are not confined to those identified in Articles 41 and 42 but are also rights referred to in Articles 40, 43 and 44.

  73. The judgment also states that

    Article 42, s. 5 of the Constitution should not, in the view of the court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.

  74. The personal rights referred to in that passage would obviously include the express rights of the child as guaranteed by Article 40.3 together with the unenumerated rights also protected by that Article.

  75. The child’s unenumerated rights were said by Finlay P. (as he then was) in G. v An Bord Uachtála (1980) IR 32 to include

    A constitutional right to bodily integrity and .... an unenumerated right to an opportunity to be reared with due regard to [his or] her religious, moral, intellectual, physical and social welfare. The State, having regard to the provisions of Article 40.3.1 of the Constitution, must by its laws defend and vindicate those rights as far as practicable.

  76. The intervention of the High Court in this case was sought by the plaintiffs in order, as they claimed, to protect and vindicate the personal rights of Paul under Article 40.3, including the unenumerated rights referred to in that passage. Specifically, it was said that the court had an inherent jurisdiction to protect those rights which was not dependent on any statutory provision.

  77. That such a jurisdiction exists is, I think, clear. The cases in which it may be invoked will, of course, be unusual and perhaps even exceptional, since in the vast majority of cases it can safely left to the parents to protect their childrens’ rights. It is not the law, however, that the courts are powerless to protect those rights in cases where, for whatever reason, they cannot be afforded that protection by the other organs of State or where - as here - it is said that they are not being upheld by the parents. This principle emerges clearly from the decision of the High Court in F.N. v The Minister for Education (1997) 1 IR 409 and of this court in D.G. v Eastern Health Board (1998) 1 ILRM 241.

  78. That inherent jurisdiction of the courts which derives exclusively from the provisions of the Constitution must be distinguished from what has usually been called the parens patriae jurisdiction. The nature of that jurisdiction is usefully summarised in the judgment of La Forest J. in the Canadian Supreme Court in Re Eve. Having referred to the origin of that jurisdiction as it was exercised in the case of the mentally incompetent, which had its origins in the royal prerogative, he pointed out that it was ultimately transferred to the Court of Wards and Liveries: thereafter the Crown exercised its jurisdiction through the Lord Chancellor. While the wardship of children had a quite separate origin as a property right arising out of the feudal system of tenures, the concept of wardship survived the abolition of both the tenures and the Court of Wards. It was effectively kept alive by the Court of Chancery, which justified it as an aspect of its parens patriae jurisdiction: see the old Irish case of Morgan v Dillon (1724) 9 Mod. R 135 at p. 139. In Ireland, the procedure was also exercised by the Lord Chancellor and, during the short interregnum between the Treaty and the Courts of Justice Act 1924 by the Lord Chief Justice of Ireland. It was then transferred to the Chief Justice of Saorstát Éireann and ultimately to the President of the High Court by the Courts of Justice Act 1936. It is, of course, still vested in the President by virtue of the Courts (Supplemental) Provisions Act, 1961.

  79. Since Paul has never been a ward of court, the President of the High Court was never asked to exercise the parens patriae jurisdiction in respect of him and we are, accordingly, not concerned in this case with the issues that arose in Re Eve, and other cases decided under the parens patriae jurisdiction in common law countries, as to the respective roles of the parent, the committee of the ward and the court itself. There are, however, statements of general principle contained in those decisions which, I think, are of some assistance in resolving the issues which do arise in this case.

  80. Counsel are in agreement that, so far as those issues are concerned, there is no Irish authority directly in point. The plaintiffs did, however, rely on certain passages in the judgement of this court in Ryan v The Attorney General.

  81. The plaintiff in that case was a member of a voluntary association which strongly objected to legislation which provided for the fluoridation of the public water supply throughout the Republic with a view to improving the standard of dental health throughout the community. It differs markedly from the present case, since, in the hearing in the High Court before Kenny J., which, by the standards of those days was remarkably protracted, a considerable volume of scientific evidence was adduced on behalf of the plaintiff to the effect that fluoride was dangerous to health. The plaintiff accordingly argued that to oblige her and her family to accept water through the public water supply was an infringement of the personal rights guaranteed under Article 40.3. Kenny J. found in favour of the plaintiff’s contention that her personal rights were not exhausted by the categories set out specifically in the article and extended to other unenumerated rights, including the right to “bodily integrity”. That judgment, as approved by this court, constitutes, of course, the fons et origo of the entire doctrine of unenumerated rights under the Constitution. On the facts of the case, however, Kenny J. found that the plaintiff had not established as a matter of probability that fluoridation would be dangerous to health. This court upheld that decision, but, delivering the judgment of the court, Ó Dálaigh C.J. made certain observations which are strongly relied on by Mr. Gallagher in the present case. Having referred to the guarantee in Article 41.1.2 by the State to protect the family “in its constitution and authority”, the learned Chief Justice went on:-

    The aspect of that authority which is in question is the authority of the family or the parents to provide for the health of its members in the way it thinks best. It is sought to establish, as a corollary, that parents are entitled to omit to provide for the health of their children if they so think fit. One of the duties of parents is certainly to ward off dangers to the health of their children, and in the court’s view there is nothing in the Constitution which recognises the right of a parent to refuse to allow the provision of measures designed to secure the health of his child when the method of avoiding injury is one which is not fraught with danger to the child and is within the procurement of the parents. The nature of the health problem here involved and the effectiveness of the means available for dealing with it have already been referred to. There is nothing in the Act which can be said to be a violation of the guarantee on the part of the State to protect the family in its constitution and authority.

  82. To the same effect is the following passage in the judgment of Walsh J. in G. v An Bord Uachtála:-

    One of the duties of a parent or parents, be they married or not, is to provide as best the parent or parents can the welfare of the child and to ward off dangers to the health.

  83. The cases from three other common law jurisdictions - the United Kingdom, Canada and Australia - must next be considered. The cases principally discussed in the course of argument were Re E. (a minor) (1990) 9 BMLR 1 (the overriding of the refusal of parents for religious reasons to consent to a blood transfusion for their 15 year old son); Re W. (a minor) (1992) 4 All ER 648 (in which the court ordered a minor who was suffering from anorexia nervosa to be given treatment despite her refusal to consent); Re C. (a child) HIV test (where the court ordered a child to be subjected to a blood test with a view to determining whether she was infected with HIV); and three cases concerned with the jurisdiction of the courts to order the sterilisation of a mentally handicapped woman or girl.

  84. I shall consider first the last of these categories since, although they raise difficult and sensitive issues on which divergent views have been expressed by judges in the various jurisdictions but do not arise in this case, there are passages in some of the judgments upon which Mr. O’Donnell strongly relies.

  85. Before considering the three cases, I should recall the notorious remark of Holmes J. in the United States Supreme Court decision, Buck v Bell (1927), 274 US 200, concerning the sterilisation of a mildly retarded woman who already had a child and who was the daughter of a similarly afflicted woman: “three generations of imbeciles are enough”. In fairness to the great judge and the members of the majority who shared his view (although they did not express it in such distasteful terms), it must be remembered that at that time eugenic reform was regarded by many as a liberal and progressive concept[1]. The hideous attempts in Nazi Germany to put it into practice have naturally made courts in our time much warier in their approach to what might seem to be eugenic measures. That caution is evident in these cases, the first of which is Re Eve.

  86. In that case, a mother applied for permission to consent to the sterilisation of her mentally retarded daughter. While she was able to carry out what were described as “the mechanical duties of a mother, under supervision”, it was accepted that she was incapable of being a mother in any real sense. The Supreme Court of Canada held that the courts should never authorise what they described as the non-therapeutic sterilisation of a mentally retarded person under the parens patriae jurisdiction. The court said that the grave intrusion on the retarded person’s rights and the certain physical damage that ensues from such a procedure, when compared to the “highly questionable advantages”, that can result from it, led to the conclusion that it could never safely be determined that such a procedure is for the benefit of that person.

  87. La Forest J. commented:-

    Nature or the advances of science may, at least in a measure, free Eve of the incapacity from which she suffers. Such a possibility should give the courts pause in extending their power to care for individuals to such irreversible action as we are called upon to take here. The irreversible and serious intrusion on the basic rights of the individual is simply too great to allow a court to act on the basis of possible advantages which, from the standpoint of the individual, are highly debatable. Judges are generally ill-informed about many of the factors relevant to a wise decision in this difficult area. They generally know little of mental illness, of techniques of contraception or their efficacy. And, however well presented a case may be, it can only partially inform. If sterilisation of the mentally incompetent is to be adopted as desirable for general social purposes, the legislature is the appropriate body to do so.

  88. The court also rejected in that case a submission that it should adopt what has been called the “substituted judgment” test: that would, in effect, place the court in the position of making a determination which the mentally incompetent person would make, if competent to do so. The court applied instead the test of what was in the best interests of the person concerned and, as already noted, concluded that it had not been established that the sterilisation procedure was in the best interests of Eve.

  89. When a similar issue came before the English courts in In Re B. (a minor) (Wardship: Sterilisation), the House of Lords declined to accept the view in Re Eve that sterilisation of a mentally incompetent person for non-therapeutic reason could never be ordered under the parens patriae jurisdiction. In that case, a girl of seventeen years was described as suffering from a moderate degree of mental handicap but had “a very limited intellectual development”. Her ability to understand speech was that of a six year old and her ability to express herself that of a two year old child. Her mother, and the staff at the local authority residential institution where she lived, having become aware that she was beginning to show signs of sexual awareness, applied for an order making her a ward of court and for leave to be given for her to undergo a sterilisation operation. Evidence was adduced that she could not be placed on any effective contraceptive regime and that she was not capable of knowing the causal connection between intercourse and childbirth, the nature of pregnancy or what was involved in delivery. She would panic and require heavy sedation during a normal delivery, which carried the risk of injury to the child, and delivery by caesarian section was deemed to be inappropriate owing to the likelihood of her opening up her post-operative wounds, thus preventing the healing of the scar. She had no maternal instincts and was unlikely ever to desire or to be able to care for a child. The High Court gave leave for the operation to be carried out and, on an appeal by the official solicitor, the appeal was dismissed.

  90. In the course of his speech, Lord Hailsham, L.C. said

    There is no doubt that, in the exercise of its wardship jurisdiction, the first and paramount consideration is the well-being, welfare or interests (each expression occasionally used, but each, for this purpose synonymous) of the human being concerned, that is the ward herself or himself. In this case, I believe it to be the only consideration involved. In particular, there is no issue of public policy other than the application of the above principle which can conceivably be taken into account, least of all (since the opposite appears to have been considered in some quarters) any question of eugenics. The ward has never conceived and is not pregnant. No question therefore arises as to the morality or legality of an abortion.

  91. Lord Hailsham in the course of his speech referred to the High Court decision of Heilbron J. in Re D. (a minor) (Wardship: Sterilisation) (1976) Fam. 185, 193. In that case, he said the judge had rightly referred to the irreversible nature of such an operation and the deprivation, which it involved, of a basic human right, namely, the right of a woman to reproduce. In that case, Heilbron J. had refused to sanction the sterilisation operation: Lord Hailsham said that he had no doubt whatever that the case was correctly decided, but added that the right referred to was only such

    when reproduction is the result of an informed choice of which this ward is incapable.

    He went on:-

    We were also properly referred to the Canadian case of In Re Eve. But whilst I find the court’s history of the parens patriae jurisdiction of the Crown, at pp. 14 - 21 extremely helpful, I find, with great respect, the conclusion, at p. 32, that the procedure of sterilisation should never be authorised for non-therapeutic purposes totally unconvincing and in startling contradiction to the welfare principle which should be the first and paramount consideration in wardship cases. Moreover, for the purposes of the present appeal I find the distinction they purport to draw between the ‘therapeutic’ and ‘non-therapeutic’ purposes of this operation in relation to the facts of the present case above as totally meaningless, and, if meaningful, quite irrelevant to the correct application of the welfare principle.

  92. Mr. O’Donnell took issue with this passage as being unduly dismissive of the approach adopted in Re Eve. However, it is clear that the House of Lords were satisfied that Re Eve was correctly decided on its own facts. In his speech, Lord Bridge emphasised that La Forest J. had said that there was no evidence that giving birth would be more difficult for Eve than for any other woman. He approved of the view of Heilbron J. that the right of a woman to reproduce was a basic human right and of the reference in Re Eve to “the great privilege of giving birth”. Lord Oliver, who referred to the “extremely instructive judgment of La Forest J. in Re Eve”, said:

    Their conclusion was that sterilisation should never be authorised for non-therapeutic purposes under the parens patriae jurisdiction. If in that conclusion the expression ‘non-therapeutic’ was intended to exclude measures taken for the necessary protection from future harm of the person over whom the jurisdiction is exercisable, then I respectively dissent from it. It seems to me to contradict what is the sole and paramount criterion for the exercise of the jurisdiction, viz. the welfare and benefit of the ward.

  93. The third of these cases is the decision of the High Court of Australia in Secretary, Department of Health & Community Services v J. W. B. & S.N.B. (Marion’s case). The parents of Marion, a fourteen year old mentally retarded girl, applied to the family court for an order authorising the performance of a hysterectomy and an ovariectomy on her. The child had commenced menstruation and it was said on behalf of the parents that she was incapable of caring for herself physically and/or understanding or properly understanding the nature and implications of sexuality, pregnancy and motherhood and that, accordingly, it was in her best interests that she undergo the operations in question. The court having ruled inter alia that it could authorise the operations, an appeal was brought to the High Court. A number of questions arose which are not directly relevant to the present case, including the question as to whether the parents themselves could authorise the operation to be carried out on the child without the intervention of the court. The majority held that the operation could not be so carried out, but that it could be carried out by an order of the family court as being in the best interests of the girl. In a dissenting judgment, Brennan J. held that neither the parents nor the courts possessed any power to authorise the non-therapeutic sterilisation of intellectually disabled children, declining to follow the approach of the House of Lords in Re B. In the course of his judgment, the learned judge said

    .... The best interest approach offers no hierarchy of values which might guide the exercise of a discretionary power to authorise sterilisation, much less any general legal principle which might direct the difficult decisions to be made in this area by parents, guardians, the medical profession and courts. It is arguable that, in a field where the law has not developed, where ethical principles remain controversial and where each case turns on its own facts, the law should not pretend to too great a precision. Better, it might be said, that authority and power be conferred on a suitable repository - whether it be parents or guardians, doctors or the court - to decide these difficult questions according to the repository’s view as to the best interests of the child in the particular circumstances of the case. In that way, it can be said, the blunt instrument of legal power will be sharpened according to the exigencies of the occasion. The absence of a community consensus on ethical principles may be thought to support this approach. But it must be remembered that, in the absence of legal rules or a hierarchy of values, the best interest approach depends upon the value system of the decision maker. Absent any rule or guideline, that approach simply creates a unexaminable discretion in the repository of the power.

  94. Having cited a passage from a paper entitled “Patients, Doctors and Human Rights” by Professor Ian Kennedy in which he described the “best interests” test as “empty rhetoric”, Brennan J. went on

    Of course the variable circumstances of each case require evaluation and judicial evaluation of circumstances vary, but the power to authorise sterilisation is so awesome, its exercise is so open to abuse, and the consequences of its exercise are generally so irreversible, that guidelines if not rules should be prescribed to govern it.

  95. Evidently, in all these decisions, two factors weighed heavily with the courts in determining the circumstances in which either parents or courts could authorise the sterilisation of a female, whether for non-therapeutic or therapeutic reasons: the irreversible consequences for the person concerned and the seriously invasive nature of the medical procedures involved. Mr. O’Donnell, however, submitted that they reflected an approach by the House of Lords - and by implication, other English courts - which was inconsistent with the values of the Irish Constitution and with the approach in other common law jurisdictions, such as Canada and Australia, and that the English decisions which were closer to the facts of the present case should be read in the light of this suggested difference of approach.

  96. I am satisfied that a careful examination of the authorities in question lends no support to that proposition. As already noted, the view of the House of Lords - that sterilisation could be authorised for non-therapeutic purposes - was also the view of the majority of the High Court of Australia. There was undoubtedly a divergence of approach, in the case of non-therapeutic sterilisation, between the Supreme Court of Canada and the House of Lords, but it seems to me a serious overstatement to say that it was based on a fundamental difference in constitutional values between the two jurisdictions: on the contrary, the Canadian charter contains no provisions equivalent to our articles relating to the family. Nor does the Commonwealth of Australia Constitution Act. While Brennan J. was of the view that the “best interests” test was not necessarily a satisfactory guide, of itself, for courts to follow, his comments were confined to the extremely difficult issues which arose in the sterilisation cases and, as it happens, the majority of the court did not accept his view on that matter.

  97. I have considered these cases at what may seem unnecessary length simply because Mr. O’Donnell relied on them strongly in support of the submission to which I have referred. In the context of the present case, it is sufficient to say that, not merely are the issues that arose in those cases entirely distinguishable from the issue with which we are concerned: there is no indication in any of the judgments that the courts in any of these jurisdictions were invoking principles which were in some fundamental sense at variance with the principles set out in the articles of our Constitution dealing with the family.

  98. That brings me to the English decisions which, it is accepted, are closer to the facts of the present case. In Re C. (a child) (HIV test) as already noted, the issue was as to whether the court could order a baby to be subjected to a test for HIV where the mother was herself infected with HIV. A GP, to whom the baby was taken for a developmental examination, expressed grave concern that the baby might already have been infected with HIV and that, if not, continued breast feeding might make her so. She said that the baby should be tested for the infection. Since the parents disagreed, the doctor said that she felt obliged to speak to officers of the local authority and experts at Great Ormond Street Hospital. A consultant paediatrician at that hospital was also of the view that the baby should be tested for infection. The parents having refused to agree to the test, the local authority applied for a direction that a sample of blood be taken from the baby. It should be noted that the baby was not a ward of court : the application was made under the Children Act 1989.

  99. The parents withheld their consent on the ground that the application for an order was “an affront to their parental autonomy”. They also relied on what they claimed was medical evidence that the test was unnecessary and of no value.

  100. In his judgment, Wilson J. said that, on the evidence before him, 20% of babies infected with HIV would develop a serious AIDS-related illness within the first year of life unless they were treated with a prophylactic. The concerns of the parents in that case arose, not simply because of what they regarded as a wrongful medical and legal intrusion into their lives, but because of their objection to the treatment which might be indicated and, as the parents saw it, forced upon them, if the test were to be carried out. Having said that he had tried to be “appropriately imaginative” about the position of the parents, Wilson J. pointed out that the baby had rights of her own, reflected in both national and international law. He summed up his conclusion as follows:-

    In order that her rights should be properly articulated, the baby in this case has been represented by the Official Solicitor. A court will always look critically at the submission of the child’s representative and in my experience in a significant minority of cases disagree with it. In this instance, however, I agree with the Official Solicitor that the case for testing the baby is overwhelming. I order it to take place.

  101. Mr. O’Donnell sought to distinguish this case on the ground that it did not raise any question of a blanket test extending to the entire population: rather it proceeded on the basis that there was a risk in the particular circumstances of the case of transmission of HIV from mother to child of between 20 to 25%. I am satisfied, however, that the decision cannot be distinguished on that ground. It is clear from the judgment of Wilson J. that he reached his conclusion because 20% of babies infected with HIV would, according to the evidence, develop the aids-related illness within the first year of life. His finding, in other words, was not specific to the particular case. It is, of course, true that the question of a test would only arise where there was a risk of the child being infected with HIV. Whether that is a sufficient ground for considering the approach adopted by the trial judge as wholly inapplicable to the circumstances of the present case is quite another matter.

  102. The case of Re T. (a minor) (Wardship: Medical Treatment) must next be considered. In that case, a child who was born with a life threatening liver defect underwent an operation at the age of 3½ weeks. The operation was unsuccessful and caused the child considerable pain and distress. The medical prognosis was that he would not live beyond 2½ years without a liver transplant. Three consultant paediatricians expressed the view that the child was suitable for a liver transplant, that although liver transplantation was one of the most major and complicated forms of surgery the operation had a good chance of success and that, if it did succeed, the child would be likely to have many years of normal life. The mother refused to give her consent to the operation because she was not willing to permit the child to undergo the pain and distress of invasive surgery. The mother later moved out of the jurisdiction to join the child’s father. The local authority, at the consultant’s instigation, applied to the High Court for permission to carry out the operation, notwithstanding the mother’s opposition and for the child to be returned to the jurisdiction so that the operation could be carried out. At first instance it was held that the mother was being unreasonable in withholding consent in the face of the medical opinion in favour of the operation, that it was in the child’s best interest to undergo a liver transplant and that permission should be granted.

  103. The Court of Appeal set aside the decision of the trial judge. It was held that the judge had failed to assess the relevance of the weight of the mother’s concern as to the benefits to her child of the surgery and post-operative treatment, the dangers of failure both long-term as well as short term, the possibility of the need for further transplants, the likely length of life and the effect on her child of all those concerns, together with the strong reservations expressed by one of the consultants about coercing the mother into playing a crucial part in the aftermath of the operation and thereafter. The court also had regard to the fact that the mother would be required to return to the jurisdiction, possibly without the father, and would thereafter have to manage unaided. Applying the “best interests” test, the court was satisfied that the order should not have been made.

  104. In the course of his judgment, Waite L.J., while agreeing with Butler-Sloss L.J. and Roche L.J. that the appeal should be allowed, made the following general observations:

    All these cases depend on their own facts and render generalisations - tempting though they may be to the legal or social analyst - wholly out of place. It can only be said safely that there is a scale, at one end of which lies the clear case where parental opposition to medical intervention is promoted by scruple or dogma of a kind which is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind; and that at the other end lie highly problematic cases where there is genuine scope for difference of view between parent and judge. In both situations it is the duty of the judge to allow the court’s own opinion to prevail in the perceived paramount interest of the child concerned, but in cases at the latter end of the scale, there must be a likelihood (though never of course a certainty) that the greater the scope for genuine debate between one view and another the stronger will be the inclination of the court to be influenced by a reflection that in the last analysis the best interests of every child include an expectation that difficult situations affecting the length and quality of its life will be taken for it by the parent to whom its care has been entrusted by nature.

  105. I do not think that I do any injustice to Mr. O’Donnell’s submissions in saying that, by implication, he accepted that, if the approach adopted in that case were to be applied, the appeal would have to be allowed. However, he urged the court to hold that the approach of Waite L.J. in failing to give any weight to parental autonomy in cases at what was described as the other end of the scale, although in conformity with a general trend in the English jurisprudence reflected in Re B. (a minor), could not be adopted in this country consistently with the provisions of the Constitution.

  106. In Re W. (a minor) (1992) 4 All ER 648, the Court of Appeal, as already noted, considered the situation in which a minor, suffering from anorexia nervosa, refused medical treatment. The condition was such that she would suffer permanent physical damage without such treatment. In the Court of Appeal, Nolan L.J., with whom Lord Donaldson M.R. and Balcombe L.J. agreed said:

    If the child’s welfare is threatened by a serious and imminent risk that the child will suffer grave and irreversible mental or physical harm .... the court when called upon has a duty to intervene. It makes no difference whether the risk arises from the action or inaction of others, or from the action or inaction of the child. Due weight must be given to the child’s wishes, but the court is not bound by them.

  107. In that case, the order of the judge that the minor should be removed to and treated at a specialist hospital was upheld.

  108. In Re E. (a minor), a 15 year old boy who had leukaemia urgently required a blood transfusion as a lifesaving measure. As devout Jehovah’s Witnesses, the boy and his parents had refused to consent to this procedure which was contrary to the tenets of their faith. The boy having been made a ward of court, the hospital authority sought the leave of the court to treat him as they considered necessary, including giving transfusions of blood and blood products. Counsel for the parents opposed the application on the grounds that it was an abuse of the process of the court, as it would be wrong for a judge in wardship proceedings to interfere in these circumstances and exercise that jurisdiction so close to the ward’s sixteenth birthday. After that date, it was agreed that the boy would be capable of making his own decisions for all purposes as to all kinds of medical treatment.

  109. Ward J. granted the order sought. He was of the view that the relevant legislation entitling persons over the age of sixteen who make such decisions for themselves did not apply, as the ward had not reached that age. The trial judge was also satisfied that he was not of sufficient understanding and maturity to give a full and informed consent and, accordingly, his veto on the treatment could not be binding.

  110. Ward J., who described the case as “one of life and death”, said that he found that the influence of the teaching of the Jehovah’s Witnesses was “strong and powerful”. The very fact that the family could contemplate the death of one of its members was, he said, “the most eloquent testimony of the power of that faith”. He summed up his views finally as follows:

    A has by the stand he has taken thus far already been and become a martyr for his faith. One has to admire - indeed one is almost baffled by - the courage of the conviction that he expresses. He is, he says, prepared to die for his faith. That makes him a martyr by itself. But I regret that I find it essential for his well-being to protect him from himself and his parents and so I override his and his parents’ decision.

  111. Those are the decisions from other jurisdictions which were principally relied on in the present case.

  112. Mr. O’Donnell also relied on the provisions of s. 4 of the Health Act 1953 which are in the following terms:-

    (1)

    Nothing in this Act or any instrument thereunder 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]

  113. This is a somewhat puzzling provision. Apart from any other considerations, it is not easy to understand the purpose of sub-s. (2), since it appears to deal with a situation already covered by sub-s. (1). However, Mr. O’Donnell essentially relied on the section as reflecting a public policy on the part of the Oireachtas which it was entitled to adopt, a decision which was entitled to respect by the courts under the doctrine of the separation of powers.

  114. It is, however, the case that this provision appears in a legislative code which is not relevant to the function which the plaintiffs seek to discharge in the present case, i.e. the promotion of the welfare of children in their area who, in their view, are not receiving adequate care and protection.

  115. It is true that s. 3(4) provides that

    The provisions of the Health Acts 1947 to 1986, and the Health (Amendment) Act, 1987, shall apply in relation to the functions of health boards and their officers under this Act and the powers of the Minister under those Acts shall have effect accordingly as if those Acts and this Act were one Act.

  116. That provision was obviously thought necessary in order to ensure that the same statutory provisions which regulate the relations between the Minister for Health and Children and the health boards apply to the discharge of their functions under the 1991 Act. The draftsman has avoided, presumably advisedly, the traditional formula requiring the 1991 Act to be treated for all purposes as part of the same code as the Health Acts, 1947 to 1986, and obliging the courts to construe the two Acts together.

  117. In any event, the provision in question does no more than prevent the Health Acts from being read as imposing an obligation on anyone to submit himself (or his children) to health examination or treatment. That is perfectly consistent with the person being under that obligation by virtue of the Constitution and with the power of the court to ensure that the obligation is performed where the responsible person fails in his or her duty.

  118. The second limb of the defendants’ argument was effectively based on the separation of powers. It has, of course, been repeatedly held by the courts that the operation of the principle of the separation of powers has as its consequence a recognition that there are boundaries to the areas within which each of the organs of State perform the roles assigned to them under the Constitution. Those authorities and the underlying principles are discussed at length in some of the judgments of this court recently delivered in Sinnott v The Minister for Education (unreported; judgments delivered July 12th, 2001). The issue in this case is as to whether, assuming that the inevitable effect of the granting of the order sought is that in every other similar case, the same order will have to be made, it follows that the courts have, in effect, legislated, by converting what has hitherto been a voluntary procedure into a compulsory one, thereby usurping the exclusive legislative role of the Oireachtas.

    CONCLUSIONS

  119. The evidence on affidavit and the oral evidence of the expert witnesses on behalf of the plaintiffs was not challenged in the High Court or in this court. This court, accordingly, must proceed upon the basis that the test to which the plaintiffs wish Paul to be subjected to is one which is required in order to establish whether he is suffering from biochemical or metabolic disorders which can cause death or brain damage, some of which are relatively common and all of which are treatable if identified at an early stage. It is also the case that any risk to the child of having the test is so minimal that, in medical terms, it can be wholly disregarded. It follows inevitably that if this case is to be determined by what is in the best interests of the child, the order sought should have been granted by the High Court.

  120. It is also the case that, while in correspondence with the plaintiffs, the first named defendant indicated that he and the second named defendant were objecting to the test on religious grounds, he did not advance that as a reason in the affidavits sworn by him in the proceedings: nor did the second named defendant. The case must, accordingly, be approached on the basis that the only grounds on which the defendants are resisting the carrying out of the test are as deposed to on oath by them, i.e., that it represents the infliction of harm, however minimal, on their child and that this is wrong in principle.

  121. In considering the application of the principles of law which I have set out in this judgment to those uncontested facts, I propose to consider first the submission that the court, in ordering the test to be carried out, would be violating the separation of powers principle by, in effect, making a test compulsory which, under present circumstances, is voluntary and which the State have never sought to make compulsory by introducing appropriate legislation.

  122. It is, of course, conceded on behalf of the plaintiffs that, if the court orders this test to be carried out on Paul, the overwhelming likelihood is that it will be carried out in the handful of cases where the parents are adopting the same attitude as that adopted by the defendants in the present case. The fact remains, however, that the central issue in this case is as to whether the constitutional rights of Paul fall to be upheld by the High Court and this court. The duty of the superior courts to uphold the rights of the child arises, to the extent that it arises at all, because they are not being upheld by the parents and have not been or, cannot be, upheld by the other two organs of the State. For a court in those circumstances to take such steps as are necessary to uphold the constitutional rights of Paul is to do no more than to carry out its duty under the Constitution and in no sense violates the doctrine of the separation of powers.

  123. I have, of course, been proceeding on the assumption that it will inevitably follow that, in any other such case, a similar order will be made. That, however, is not necessarily so. As in every case which comes before the High Court and, on appeal, to this court, the court is confined to considering the case in the light of the evidence adduced and the submissions advanced. I have already pointed out that we are not concerned in the instant case with a refusal based on sincerely held religious beliefs, such as those which so troubled the court in the case of In re E. (a minor). That is not to say, however, that in another case, however improbable it may now seem, the court might be asked to refuse the order on specific religious grounds which require, at the least, respectful consideration.

  124. Of even more significance is the fact that the uncontradicted medical evidence was to the effect that the Guthrie test was the only satisfactory test at present available. As a matter of strict law, the possibility cannot be excluded that in another case the court might be satisfied that the non-invasive testing methods proposed on behalf of the defendants might, in the light of scientific evidence not available in this case, be satisfactory. As Ó Dálaigh C.J. observed in Ryan v The Attorney General:

    .... The court is considering a statute which uses scientific terminology, deals with a scientific procedure and requires scientific knowledge to comprehend the effect of its provisions. These are not matters which are presumed to be within the knowledge of the court, and, accordingly, the unconstitutionality of the Act, if it be unconstitutional, cannot be determined except by reference to the particular evidence which is furnished in the case. Since evidence may differ from case to case and as scientific knowledge may increase and the views of scientists alter, the court’s determination cannot amount to more than a decision that, on the evidence produced, the plaintiff has, or has not, discharged the onus of demonstrating that the Act is unconstitutional.

  125. Applying that principle to the facts of the present case, I am similarly satisfied that any determination by the court in favour of the plaintiffs cannot amount to more than a decision that, on the evidence produced, the plaintiffs have discharged the onus, which unarguably rests on them, of establishing that the constitutional rights of Paul can only be upheld by the carrying out of the test.

  126. I am accordingly satisfied that the submission that the granting of the orders sought by the plaintiff violates the principle of the separation of powers is not well founded. I finally consider whether the plaintiffs have established that the constitutional rights of Paul can only be upheld by the carrying out of the test.

  127. I have no doubt that the passage I have cited already from the judgment of Waite L.J. in the English Court of Appeal in Re T. (a minor) also represents the law in this jurisdiction. I do not accept the submission advanced on behalf of the defendants that, because of the particular provisions of the Constitution upholding the authority and constitution of the family, the court, in a case such as this, is obliged to allow the wishes of the parents, however irrational they may be, to prevail over the best interests of Paul, which must be the paramount concern of the court under the Constitution and the law. Far from giving effect to the values enshrined in Article 42, such an approach would gravely endanger his right, so far as human endeavours can secure it, to a healthy and happy life and would be a violation of those individual rights to which he is entitled as a member of the family and which the courts are obliged to uphold. It seems to me that the wise and humane observations of Waite L.J. in Re T. (a minor) are completely in harmony with the philosophy which informs our Constitution since they lay proper emphasis on the weight that must be given, where appropriate, to the wishes of the parents. It is, indeed, noteworthy that, in that case, the court set aside the order at first instance requiring the operation to be carried out and, on one view, the case could be regarded as being at the outer limits of the area in which the wishes of parents may outweigh what, on another view, might have appeared to be, on balance, in the best interests of the child. That the same considerations apply to the compulsory application of a particular test - as distinct from a purely medical procedure - is clear from the decision in Re C, with which I would respectfully agree.

  128. I reach that conclusion even though this is not a case in which the wardship jurisdiction of the High Court has been invoked, because I am satisfied that the duty of the court to uphold the constitutional rights of children is not confined to such cases. That duty also arises where, as here, the inherent jurisdiction of the court to uphold those rights is invoked by a party with an indisputable legitimate interest in the child’s welfare.

  129. The trial judge was concerned in this case with what he saw as a rapid progression towards “the Brave New World in which the State always knows best” . I think that this, with respect, is a mistaken view. The plaintiffs in this case, as an administrative body charged with promoting the welfare of children in their area, who may be regarded as an emanation of the State, ultimately do not claim to know best: they undoubtedly, however, approach this case on the basis that the scientists know best. It can, of course, be said with some truth that not all the advances of science in our time have been beneficial, although the scientists would doubtless argue that this was because of the misuse which states and other organisations have made of their discoveries and inventions. No doubt, scientists, in common with other groups in society, can also be arrogant and complacent. The fact remains that in our daily lives we constantly proceed on the basis that they do indeed know best. When we board an aircraft, we like to think that the captain is guided by his or her technical manuals and not by what he or she has been told by an astrologer. If we have to undergo brain surgery, we would hope that the surgeon conducts the operation in accordance with the latest state of scientific knowledge and not in accordance with the requirements of some arcane religious cult.

  130. It is also a mistaken belief, in my view, to equate the parents’ refusal to allow this test to be carried out with the multitude of decisions parents make in their daily lives concerning the education and upbringing of their children. Every sensible parent recognises that they cannot hope to protect their children from the risks which are an inevitable part, of everyday existence and that, for example, to allow a child to play a particular game which on occasions has resulted in injury to those who take part is a decision which may, depending on the age of the child, have to be made by its parents and which could not conceivably, in any civilised society, be made by the State. None of those considerations apply to the test under consideration in the present case: a conscientious weighing by a properly informed parent of the dangers consequent on not having the test as against the minimally invasive nature of the procedure involved could in this case result in one conclusion only.

  131. Nor can any useful analogy be drawn, in my view, with cases in which parents may decline to have their children inoculated or immunised against the risk of contracting specific diseases. It is common knowledge that there are cases in which at least some doctors question the desirability of the procedures involved and a court in such cases might well be reluctant to interfere with the conscientious decision of the parents concerned. That does not arise in this case.

  132. Paul is not a party to these proceedings, but the High Court and this court is in the fortunate position that the arguments of someone appearing on his behalf would have been the same as those put forward by the plaintiffs. What is beyond doubt is that, if this test is not administered and in the course of the next few years, he suffers death or serious brain damage as a result, the responsibility will not be that of the defendants alone. In this case, the defendants have refused to protect and vindicate, so far as practicable, the constitutional right of Paul to be guarded against unnecessary and avoidable dangers to his health and welfare. The courts, in my view, can and should.

  133. I would allow the appeal and substitute for the order in the High Court an order granting a declaration that it is in the best interests of Paul that the P.K.U. test be carried out on him and that the refusal of the defendants to consent to the carrying out of that test is a failure by them to vindicate his personal rights.

    Denham J

    1. APPEAL

  134. This is an appeal by the North Western Health Board, hereinafter referred to as the plaintiff, from a judgment and order of the High Court (McCracken J.) delivered on 27th October, 2000. H.W. and C.W., hereinafter referred to as the defendants, are the parents of a baby boy, J.W., born in 2000. The High Court ordered that the plaintiff’s motion for an order permitting the plaintiff to carry out the P.K.U. test on J.W., notwithstanding the refusal of his parents, or restraining the defendants, their servants or agents from impeding the carrying out by or on behalf of the plaintiff of the P.K.U. test, be refused.

    2. THE BACKGROUND

  135. The background to this case was described by the learned High Court judge. He stated:

    There is a screening test, commonly known as the P.K.U. test, which has been available for over thirty years for testing for the presence of four metabolic conditions and one endocrine condition in children. This test is normally carried out on new born infants between 72 hours and 120 hours after birth. It is in effect a blood test, the blood being extracted from the infant by puncturing the skin, usually in the heel of the infant, with a lancet which has a guard which ensures it can only penetrate to a limited extent, and then extracting some drops of blood, usually by pressure on the heel close to where the lancet was inserted. The resulting drops of blood are collected on what is called a Guthrie card and is sent to Temple Street Hospital in Dublin where it is tested for these conditions.

    In the present case we are only concerned at this stage with the screening for three of these conditions which may be referred to briefly.

    1.

    Phenylketonuria. This is a condition which may cause severe mental handicap, but which may be treated primarily by diet throughout the lifetime of the sufferer. It is a relatively common disorder and has an incidence of 1 in 4,500 in this country.

    2.

    Homocystinuria. This is a metabolic condition which may cause intercranial bleeding or strokes, and also can cause dislocation of the lenses of the eye and can result in severe mental handicap. This again can be treated by diet control for life and the incidence in this country is 1 in 49,000.

    3.

    Hypothyroidism. This condition results from the failure of the thyroid gland to produce thyroxine and again results in mental handicap. It can be treated and controlled by medication and its incidence in Ireland is 1 in 3,500.

    It is common to all these conditions that they are treatable, but once the damage has been caused by the condition it is usually irreversible and thus it is medically considered of great importance to have the condition diagnosed at as early a stage as possible.

    This screening has been carried out for over thirty years. Originally, the screening was only for phenylketonuria, and this was extended to the other conditions at various times up to the year 1979. This screening is not provided for by legislation, but is a service which is being provided by the Department of Health and the local health boards for the benefit of the community in general. There is no provision or regulation making it mandatory, but in reality it is now carried out more or less as a matter of course, and the Department of Health records would indicate that there are only about six cases per year in which parents refuse to have the test carried out.

    In September 1990 a working group was set up by the then Minister for Health to report on metabolic disorders, which report recommended certain standard procedures with an aim or objective of 100% coverage of infants in the State. Under the heading “Responsibility of Parents” the report recommended:-

    In the case of parents who refuse to allow their infant to be screened, the responsibility for the possible adverse consequences of their decision shifts, to them. The parents should be requested to signify their refusal in writing.

    3. THE FACTS

  136. The facts are not in issue in this case, they were set out by the learned High Court judge as follows:

    The defendants are the parents of a baby who I shall call Paul (not his real name) who was born earlier this year. They are resident in the functional area of the plaintiff health board. Paul was in fact born at home, and shortly after his birth the nurse employed by the plaintiff sought to have the P.K.U. test carried out on Paul. The defendants refused to allow the test to be carried out, and after some correspondence wrote to the plaintiff’s solicitors in the following terms:

    As you know, the P.K.U. test is a test which can be carried out on different substances, such as urine, blood and hair samples. Our decision regards our son (Paul) is as follows: we have no objection against the P.K.U. test being carried out, provided a test substance is used which can be obtained by non-invasive measures. This means in detail: we are prepared to supply the North Western Health Board with hair and urine samples for carrying out the P.K.U. test for our son (Paul). We refuse to allow blood samples being taken, as these can only be obtained by invasive measures, such as puncturing a blood vessel. It is our strong religious belief, that nobody is allowed to injure anybody else. We hope that through this clarification, court proceedings can be averted.

  137. It is accepted that at this stage there is no necessity for a screening in relation to two of the conditions normally covered by the tests, as they would already have become apparent had they been present. However, the plaintiff emphasises that the remaining three conditions which I already have described could still be present, and if identified at this stage could be treated successfully.

  138. In this case the plaintiffs are claiming certain declarations and injunctions, namely:

    1.

    A declaration that it is in the best interest of (Paul) that a P.K.U. test be carried out on him.

    2.

    A declaration that the refusal of the defendants to consent to the carrying out of a P.K.U. test on (Paul) is a failure by them to vindicate the personal rights of (Paul).

    3.

    A declaration that the plaintiff be permitted to carry out the P.K.U. test on (Paul), subject to such conditions as might be directed, and notwithstanding the refusal of his parents, the defendants herein, to consent thereto.

    4.

    An injunction (and if necessary an interlocutory injunction) restraining the defendants, their servants or agents, from impeding the execution by the plaintiff of the aforesaid P.K.U. test.

    5.

    A mandatory injunction (and if necessary a mandatory interlocutory injunction) requiring the defendants to furnish their consent to the execution of the aforesaid P.K.U. test on the said (Paul).

  139. This case raises very serious constitutional issues both with regard to the relationship between parents and their child and with regard to the powers and duties of the State to act for the benefit of children.

  140. It is not disputed by the defendants that the court has jurisdiction in this matter pursuant to section 9 of the Courts (Supplemental Provisions) Act, 1961 but what is at issue is the extent of that jurisdiction. The plaintiffs for their part rely on the provisions of the Child Care Act, 1991 and in particular on section 3.

  141. The plaintiffs also point to the extended powers given to a health board in relation to care orders and supervision orders, although they are not bringing these proceedings based on those provisions.

    4. THE JUDGMENT OF THE HIGH COURT

  142. The conclusions of the learned High Court judge were as follows:

    I have already quoted the provisions of section 3 of the Child Care Act, 1991, which undoubtedly imposes an obligation on health boards to promote the welfare of children in its area ‘who were not receiving adequate care and protection’. In this regard, the welfare of the child must be the first and paramount consideration. I must, of course, in the absence of any constitutional challenge to this section, assume that it is constitutional, and accordingly it must be construed in accordance with the provisions of the Constitution. It should be noted that the Act is primarily concerned with situations where, for a child’s welfare, it is necessary that the child be taken under the care of some institution other than the family. In accordance with the presumption of constitutionality within which these provisions, must come, it must relate to exceptional cases where there has been a failure by the parents for physical or moral reasons. The Child Care Act simply provides a mechanism whereby the State undertakes its obligations under Article 42.5. Quite clearly the welfare of the child is not the only matter to be considered under s. 3 of the Act, and the rights of the parents and the position of the family unit is clearly both recognised and emphasised in sub-section 2(b) and (c) of that section.

    Article 41.1 places the family in a very special position as being the natural primary and fundamental unit group of society. It also provides that the family possess rights which are antecedent and superior to all positive law. It is indeed probably the provision in the Constitution which comes nearest to accepting that there is a natural law in the theological sense. There have been a number of cases which have spoken of a hierarchy of rights under the Constitution, but the wording of Article 41.1 certainly would appear to place the rights of the family and therefore presumably the rights of the parents in relation to their children, very high up in this hierarchy. In effect, in the present case, I am being asked to balance those rights against the rights of Paul as an individual, and the plaintiff argues that I should do this by seeking to ascertain what is in the best interests of Paul. There is no doubt that medical opinion would emphatically state that it is in Paul’s best interest to have the P.K.U. test done, to ascertain whether he may in fact suffer from any of the conditions tested for. Objectively, on all the evidence before me, this is certainly so. The question I have to answer is whether this objective benefit to Paul overrides the rights of his parents, in effect, to decide that they do not want Paul to have the discomfort, and discomfort is as strong a word as could be used for it, of a pinprick in his heel, and are prepared to take the risk that he does not suffer from any of the relevant conditions.

    Parents constantly make decisions of this nature, and subject their children to risks which objectively may not be justified, and which may have disastrous results. Examples outside the medical field may be decisions to allow a child to cycle to school on a busy road, or decisions to allow a teenager to find his or her own way home from a disco. Of course, in extreme cases the putting of children into a situation of risk may justify State intervention, but such cases would be extreme and therefore exceptional cases. In the medical field, the State provides many facilities for the protection of children, such as inoculations and vaccinations, but it does not compel the parents to have their children inoculated or vaccinated. There is in fact a far stronger case to be made that some vaccinations should be compulsory in the common good where the vaccination is against an infectious disease such as diphtheria or meningitis, but the State has chosen to leave it to the decision of the parents to have these vaccinations.

    Undoubtedly the strongest case in favour of the plaintiff is Ryan v The Attorney General but I think this case must be seen in its context. This was a situation where the State sought to oppose the treatment of water for the common good, and in which one individual fought to prevent the entire nation from having the benefit of fluoridation. The present case is quite the opposite. Here the State is providing a service to the public in general, which will not be affected by the outcome of these proceedings. In the Ryan case, one suspects the result would have been very different if Mrs. Ryan had simply sought a declaration that she and her family were not bound to drink from the common water supply, and that in effect is the argument being made by the defendant in the present case.

    The framers of the Constitution used the word ‘exceptional’ in Article 42.5, and one must assume that they did so after very careful consideration. Indeed, the use of that word is totally consistent with the provisions of Article 41.1. There are of course cases in which the State may interfere with parental rights, and many of these are detailed in the Child Care Act, 1991. They are the exceptional cases. In my view the decision in the present case by the defendants, who are acknowledged to be caring and conscientious parents, could not be said to constitute an exceptional case, even though the general medical opinion would be quite clear that such decision was wrong. If the State were entitled to intervene in every case where a professional opinion differed from that of parents, or where the State considered the parents were wrong in their decision, we would be rapidly stepping towards the Brave New World in which the State always knows best. In my view that situation would be totally at variance with both the spirit and word of the Constitution.

    Finally, I should consider the wording of Article 40.3.2, which would appear to be the constitutional justification for the intervention by the plaintiff in this case. The ‘unjust attack’ on (sic) ‘injustice done’ required by this provision can only be the refusal of the defendants to allow the test to be carried out on Paul. As I have already indicated, I do not think that there has been an injustice to Paul, but even if I am wrong, the State has not chosen to use its laws to protect Paul in the manner envisaged by Article 40.3.2. The State, through the plaintiff as an organ or body set up by the State, appears to be asking the court to undertake the obligation imposed by the Article. If the State believes that it has an obligation to make it unlawful for parents to refuse to allow their children to undergo tests such as this, the State, through the Oireachtas, could so provide in legislation. That legislation could then be tested in the courts for its constitutionality.

    Accordingly I refuse the relief sought.

    5. GROUNDS OF APPEAL

  143. Against the said judgment and order of the High Court the plaintiff has appealed.

    The grounds of appeal were as follows:

    1.

    The learned trial judge erred in law in determining that the jurisdiction of the court to override the refusal of the respondents herein to consent to the administration of the P.K.U. test on J.W. only arose in exceptional circumstances where the respondents for physical or moral reasons failed in their duty towards the said child.

    2.

    The learned trial judge erred as a matter of law in determining that the obligation of the health board provided for in section 3 of the Child Care Act,1991 must relate to exceptional circumstances where there has been a failure by parents for physical or moral reasons.

    3.

    The learned trial judge failed to have any or any sufficient regard to the uncontradicted medical opinion that it is in the best interest of J.W. to have the P.K.U. test done.

    4.

    The learned trial judge erred as a matter of law and/or fact in determining that the right of J.W.’s parents to decide that they do not want him to have this test overrides the objective benefit to J.W. of having the P.K.U. test administered to him.

    5.

    The learned trial judge erred in law and in fact in determining that the refusal of the respondents herein to consent to the administration of the P.K.U. test on J.W. was not an exceptional case within the meaning of Article 42.5 of the Constitution of Ireland.

    6.

    The learned trial judge erred in law in failing to have any or any sufficient regard to the personal rights of the said J.W. guaranteed by Article 40.3 of the Constitution of Ireland, and in particular to his right to be afforded medical treatment and diagnosis, and to the obligation of the respondents, and of the appellants, to defend and vindicate those rights.

    7.

    The learned trial judge erred in law in concluding that the appropriate and/or only mechanism for the compulsory administration of the P.K.U. test was through legislation.

    8.

    The learned trial judge failed to have any or any adequate regard to the rationality of, or basis for, the belief of the respondents that the P.K.U. test should not be carried out on their child.

    9.

    The learned trial judge erred in law and in fact in concluding that the issue of whether the P.K.U. test should be administered to J.W. notwithstanding the objection of the respondents herein, was analogous or similar to decisions by parents outside the medical field involving a risk to their child.

    10.

    The learned trial judge erred in law and in fact in suggesting an analogy between the application of the appellant to override the refusal of the respondents to consent to the P.K.U. test and the compulsory administration of vaccinations.

    11.

    The learned trial judge erred in law in failing to have regard to and/or failing to properly apply the best interests of J.W. to the within proceedings.

    6. THE CONSTITUTION AND THE LAW

  144. Relevant articles of the Constitution of Ireland and statutes were referred to by counsel. They include the following:

    Section 3 of the Child Care Act, 1991:

    (1)

    It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

    (2)

    In the performance of this function, a health board shall-

    (a)

    take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

    (b)

    having regard to the rights and duties of parents, whether under the Constitution or otherwise-

    (i)

    regard the welfare of the child as the first and paramount consideration, and

    (ii)

    insofar as practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and

    (c)

    have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

    Constitution of Ireland, Article 40.3:

    2.

    The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

    Constitution of Ireland, Article 41.1:

    1.

    The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

    2.

    The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

    Constitution of Ireland, Article 42:

    1.

    The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

    ....

    5.

     

    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.

  145. The learned High Court judge regarded the most controversial case quoted as Ryan v The Attorney General [1965] I.R. 294. At p. 350 O’Dalaigh C.J. stated:

    The aspect of that authority which is in question is the authority of the family or the parents to provide for the health of its members in the way it thinks best. It is sought to establish, as a corollary, that parents are entitled to omit to provide for the health of their children if they so think fit. One of the duties of parents is certainly to ward off dangers to the health of their children, and in the Court’s view, there is nothing in the Constitution which recognises the right of a parent to refuse to allow the provision of measures designed to secure the health of his child when the method of avoiding injury is one which is not fraught with danger to the child and is within the procurement of the parent. The nature of the health problem here involved and the effectiveness of the means available for dealing with it have already been referred to. There is nothing in the Act which can be said to be a violation of the guarantee on the part of the State to protect the family in its constitution and authority.

  146. To illustrate the fact that the duty of the State under Article 40.3.2. is not unlimited or universal the learned High Court judge referred to Hanrahan v Merck Sharp & Dohme [1988] I.L.R.M. 629. In particular, reference was made to p. 636 - where Henchy J. stated:

    [T]he guarantee to respect and defend personal rights given in Article 40.3.1 applies only ‘as far as practicable’ and the guarantee to vindicate property rights given in Article 40.3.2 refers only to cases of ‘injustice done’. The guarantees, therefore, are not unqualified or absolute. I find it impossible to hold that Article 40.3.1 means that a plaintiff in an action in nuisance is to be relieved of the onus of proving the necessary ingredients of that tort. Neither, in my view, does Article 40.3.2 warrant such a dispensation, for the guarantee of vindication there given arises only ‘in the case of injustice done’, so that it is for the plaintiff to prove that the injustice relied on was actually suffered by him and that it was actually caused by the defendant.

  147. In relation to the rights and duties of the State to a child reference was also made to In re The Adoption (No. 2) Bill, 1987, [1989] I.R. 656. In that case Finlay C.J. said at p. 663:

    In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.

    Article 42, s. 5, does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they were to be disposed of as such.

    7. DECISION

  148. The P.K.U. test is invasive of the child, albeit in a minor manner, and therefore may not be performed without consent. Primarily the matter of consent is for the parents of a child. In this case the parents have refused consent. Apparently six or seven sets of parents in Ireland refuse annually to consent to the P.K.U. test being carried out on their child. In this case the plaintiff seeks an order of the court permitting it to carry out the test.

  149. As I stated In re A Ward of Court (withholding medical treatment) No. 2 [1996] 2 I.R. 79, at p. 156:

    Consent

    Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g., in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent it may be trespass against the person in civil law, a battery in criminal law, and a breach of the individual’s constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.

    If the patient is a minor then consent may be given on their behalf by parents or guardians.

  150. The P.K.U. test was sought to be given to the child by the plaintiff as part of a public health screening process. It was a routine process in a national screening programme. There was no particular reason why this child should be tested for P.K.U.. There was no relevant family history. There were no circumstances which made it particularly apt for the child to have the test. The only form of the test offered was by way of taking blood from the heel of the child by way of a heel prick.

  151. The plaintiff has no complaint about how the respondents take care of the child. They have taken appropriate care of all their children. In relation to another of their children they refused a P.K.U. test and the child was taken into care pursuant to s. 18 of the Child Care Act, 1991 by the plaintiff so that the test could be administered and thereafter the child was returned to the care of the parents. Later, in a similar case, the Circuit Court held that s. 18 of the Child Care Act, 1991 could not be used for this purpose. That decision was not an issue in this case.

  152. The P.K.U. test is part of a health screening programme conducted throughout Ireland. Over the past thirty years most, if not all, countries in Western Europe have developed P.K.U. screening, as has the United States of America. In no country is the test compulsory. To date neither the executive nor the legislature in Ireland has sought to make the test compulsory. The situation has been that there is a scheme and parents have been advised to consent to the test but they may refuse.

  153. Under the Constitution the State recognises the family as the natural primary and fundamental unit group of society: Article 41.1.1, Constitution of Ireland. Further, the State guarantees to protect the family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the nation and the State: Article 41.1.2, Constitution of Ireland. Thus, the family is the basic unit in our society and in accordance with the Constitution the State will protect it. The family in the context of Article 41 of the Constitution is the family founded on the institution of marriage.

  154. The fact that the family is the fundamental unit group of society is a constitutional principle. Whatever historical origin or origins may be given for this principle it is a principle of the Constitution. In this case the family is one recognised and protected by the Constitution. The responsibility and authority of the family is exercised by the defendants. The child is a member of the family and has the benefit of being a part of that unit. The child is the responsibility of the parents. The rights of the parents in exercising their responsibility are not absolute; the child has personal constitutional rights. The child has rights both as part of the unit of the family and as an individual. Legislation has long recognised the paramountcy of the welfare of the child.

  155. In previous cases a balance has been sought between the different rights and interests in cases involving parents and children. Initially cases were more protective of parental authority and the family in all but very exceptional cases. However, in recent times the child’s rights have been acknowledged more fully. It is settled law that the courts have a constitutional jurisdiction to intervene to protect the constitutional rights of a child. The courts will protect such rights whether legislation exists or not. In this case the issue is whether the court should apply constitutional principles and intervene to override the refusal of the parents to give consent to the P.K.U. test.

    Constitutional Principles

  156. The constitutional principles applicable are those to be found in Article 40.1, Article 41 and Article 42.5 of the Constitution of Ireland. These should be construed harmoniously. Thus, the child has personal rights: Article 40.1 of the Constitution of Ireland. The State has a duty to respect, and, as far as practicable, by its laws to defend and vindicate these rights. 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.

  157. However, the legislation and the rights of the child have to be construed in accordance with Article 41 which places the family at the centre of the child’s life and as the core unit of society. The language of Article 41 (set out previously) is clear and strong. The family is the fundamental unit group of society and the State (which includes the courts) guarantee to protect the family in its constitution and authority.

  158. Article 42.5 envisages, in exceptional cases, where parents fail in their duty to the child, that the State as guardian of the common good shall by appropriate means endeavour to supply the place of the parents, but this is subject to the rights of the child. It is clear that under Article 42.5 the State is the default parent and not the super parent.

  159. The Constitution clearly envisages the common good requiring the State to take the place of parents where they for physical or moral reasons fail in their duty towards their children. When taking this approach due regard must be given to the right of the child to its family. However, the child at all times retains his or her personal rights also.

  160. In F.N. v Minister for Education [1995] 1 I.R. 409 the rights of a child were analysed. Geoghegan J. at p. 415 - 416 stated:

    In G. v An Bord Uchtála [1980] I.R. 32, the constitutional rights of a child were considered in both the High Court and the Supreme Court. In the course of his judgment in the High Court, which was upheld by the Supreme Court, Finlay P., at p. 44, having upheld the right of a parent to the custody and control of the upbringing of a daughter, went on to observe as follows:-

    In my view, her daughter likewise has a constitutional right to bodily integrity and has an unenumerated right to an opportunity to be reared with due regard to her religious, moral, intellectual, physical and social welfare. The State, having regard to the provisions of Article 40, s. 3, sub-s. 1, of the Constitution must by its laws defend and vindicate these rights as far as practicable.

    O’Higgins C.J. in the Supreme Court pointed out that a child having been born has the right to be fed and to live, to be reared and educated, and to have the opportunity of working and realising his or her full personality and dignity as a human being, and that these rights must equally be protected and vindicated by the State. While normally these duties would be carried out by the parents, in special circumstances the State takes on the obligation. Walsh and Henchy JJ. made similar observations. The vindication by the State of a child’s constitutional rights has been further elaborated upon by the Supreme Court in The Adoption (No. 2) Bill, 1987 [1989] I.R. 656 and M.F. v Superintendent Ballymun Garda Station [1991] I.R. 189 . Having regard to the principles enunciated in these cases, I would take the view that where there is a child with very special needs which cannot be provided by the parents or guardian there is a constitutional obligation on the State under Article 42, s. 5 of the Constitution to cater for those needs in order to vindicate the constitutional rights of the child. It is not necessary for me to determine how absolute that duty is; conceivably there may be very exceptional circumstances where there is some quite exceptional need of the child which the State cannot be expected even under the Constitution to provide. In this connection The State (C.) v Frawley [1976] I.R. 365 was relied on by counsel for the State. But it would seem to me that on the balance of probabilities the provision of such necessary accommodation, arrangements and services by the State as might meet the necessary requirements of this applicant is not so impractical or so prohibitively expensive as would come within any notional limit on the State’s constitutional obligations. There may be differences of opinion among the experts as to the level of staffing arrangements which would be required, even on a temporary basis, for the proper care of F.N. but I am not convinced at present that even the more extreme view taken by Doctor Byrne as to staff ratio is prohibitively expensive. He has given evidence that similar facilities are available in Canada and other countries. I would have thought that in considering questions of expense and practicality, the State would have regard not merely to the immediate cost but to a possible long term saving of cost if the special treatment of recalcitrant children led in the long term to a reduction of crime and drug abuse. But these are obviously to some extent areas of policy. I advert to them merely to indicate why it is not self-evident to me that the more elaborate requirements suggested by Doctor Byrne fall outside the ambit of any constitutional duty owed by the State.

    In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as soon as reasonably practicable, either by use of s. 58, sub-s. 4 of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the applicant.”

  161. It is important to note that in that case there was no issue as to parental responsibility. The child was effectively an orphan in the care of the State.

  162. The circumstances of this case include parental responsibility as a factor. The parents have decided not to have the child receive the P.K.U. test in the form offered by the plaintiff. That decision has to be balanced against the authority of the Health Board and its responsibility, with due regard to the child’s rights. Essentially at issue is the balance of responsibility between parental rights, the Health Board and the child’s rights as a member of a family and as a person.

  163. The involvement of a Health Board in the care of a child in a family is a sensitive matter. In this case it was submitted that the plaintiff did not wish to be intrusive. However, it has a duty to the children in its area. In addition, the plaintiff is concerned that it would have a liability. The plaintiff is a statutory body given a statutory responsibility for the welfare of children in its area and potentially a liability for failing to insure the welfare of the child.

  164. The screening test in issue is not a scheme established by statute. The Oireachtas has not decided that every child in the country should have this test. Thus this case does not require a decision as to the constitutionality of any legislation or the balancing of the common good against individual or group rights in relation to that legislation. The fact that there is no legislation seeking to make the P.K.U. test compulsory is a relevant factor. If there was such legislation it would be presumed to be constitutional yet open to review. Any such review would involve consideration of the common good while analysing the rights of the family and the child. The fact that there is no legislation requiring that children be given the P.K.U. test is a factor of importance in that as a consequence the analysis leading to a decision commences not from such legislation but from the Constitution. Any comment as to what the situation would be if there was legislation governing the P.K.U. test could only be speculative. Legislation is not an issue in this case. Nor is it appropriate to indicate whether or not the Oireachtas should legislate.

  165. The screening test is available through health boards. Health boards have a function to promote the welfare of children in their area who are not receiving adequate care and protection. In this function the board must have regard to the welfare of the child as the first and paramount consideration, to the rights and duties of the parents, to the wishes of the child (having regard to his age and understanding), and to the principle that it is generally in the best interests of a child to be brought up in his own family: s. 3, Child Care Act, 1991. Thus the matter is a balancing of the rights and responsibilities of the family, the child and the Health Board.

  166. There is no precedent in our common law jurisprudence which is on all fours with this case. Some case law in the United Kingdom was opened, but none is apt. In Re: C (a child HIV test) [1999] 3 F.C.R. 289 the circumstances were very different. There caring parents had decided not to have a baby, whose mother was HIV positive and who was breast feeding the child, tested for HIV. Breast feeding was known to be high risk for HIV transmission. The factors were such that a decision in the case would not have the effect of making such a test mandatory for all babies. The child was in a situation which was life threatening. That decision is distinguishable from the circumstances of this case.

  167. Similarly, Ryan v The Attorney General [1965] I.R. 294 was decided on a very different set of facts. The plaintiff sought an order which would effectively involve the entire community. The order sought was effectively a policy decision for society. On the facts as then found there was no breach of a constitutional right of the plaintiff. In this case the order sought relates to the exclusion of a child from a scheme where the test is available in individual units and not through the community water supply. Thus a differing balance of principles has to be analysed. Ryan is distinguishable also.

  168. I do not find any of the cases cited from other jurisdictions helpful. They raise different issues. None of them relate to the type of circumstances herein, i.e. a screening test such as the P.K.U. test. This may itself be informative. Cases from other jurisdictions were not helpful also as they do not apply the constitutional principles applicable here. Further, many of the cases referred to decisions relating to persons in wardship, which is not the situation here.

  169. During the submissions before the court, counsel informed the court that the basis for the refusal to let the child have the blood screening test was not religious. Thus this is not a case where there is a faith factor or a balancing of a religious element.

  170. The decision in this case requires the correct constitutional balance between the responsibility of the parents and the health board and the constitutional rights (family and personal) of the child. The fundamental principles by which the community wishes to live are to be found in the Constitution. The Constitution clearly places the family as the fundamental unit of the State. The family is the decision maker for family matters - both for the unit and for the individuals in the family. Responsibility rests fundamentally with the family. The people have chosen to live in a society where parents make decisions concerning the welfare of their children and the State intervenes only in exceptional circumstances. Responsibility for children rests with their parents except in exceptional circumstances. In assessing whether State intervention is necessary the fundamental principle is that the welfare of the child is paramount. However, part of the analysis of the welfare of the child is the wider picture of the place of the child in the family; his or her right to be part of that unit. In such a unit the dynamics of relationships are sensitive and important and should be upheld when possible as it is usually to a child’s benefit to be part of the family unit.

  171. In seeking the balance to be achieved between the child’s rights within and to his family, and the family (as an institution) rights, and the parents’ right to exercise their responsibility for the child, and the child’s personal constitutional rights, the threshold will depend on the circumstances of the case. Thus, if the child’s life is in immediate danger (e.g. needing an operation) then there is a heavy weight to be put on the child’s personal rights superseding family and parental considerations.

  172. In assessing the balance to be achieved in this case it is an important fact that there is no family history which makes it more than the most remote possibility that the child could have the illness to be tested for. His siblings have been tested and the result is negative. It would be relevant if the child had a real or significant chance of having the disease being screened. On the facts of this case this is not likely. Statistics are not the basis on which any decision will rest. Every child is cherished under the Constitution, cherished in accordance with the principles of the Constitution. However, perhaps statistics would illustrate how a hard case has the potential to make bad law.

  173. In assessing the balance to be achieved in this case it is relevant to consider the threshold which it would set for this and other medical tests and for matters such as inoculations. If the responsibility for making this decision is transferred from the parents to the State then it would herald in a new era where there would be considerably more State intervention and decision making for children than has occurred to date. Every day, all over the State, parents make decisions relating to the welfare, including physical, of their children. Having received information and advice they make a decision. It may not be the decision advised by the doctor (or teacher, or social worker, or psychologist, or priest or other expert) but it is the decision made, usually responsibly, by parents and is abided by as being in the child’s best interest. Having been given the information and advice, responsibility remains with parents to make a decision for their child. The parents are responsible and liability rests with them as to the child’s welfare.

  174. In exceptional circumstances - such as where a child needs acute medical or surgical care - the expert may be part of an application for a court order to protect the welfare of the child by seeking a judicial decision different from that of the parents. This arises only in exceptional circumstances. Even if acute medical care is advised by some medical experts and the parents consider that the responsible decision may be to refuse such care it may be within the range of responsible decisions. This may occur where a child is suffering a terminal illness and parents may decide responsibly that he or she has suffered enough medical intervention and should receive only palliative care.

  175. I use these examples to illustrate the issues raised by the parties in this case and the effect any decision will have on family life throughout the community. Although the case relates to one child in one family and it is decided on its facts, there is no doubt that through this decision a precedent will have been established.

  176. If the court were to order that the child receive the screening test then it would effectively mean that the test was compulsory for children. This would mean that the court, without the benefit of the kind of analysis and preliminary work which would precede legislation, would be making a policy decision for all children that this test be compulsory. Such an outcome would be at odds with the approach previously taken in Ireland that medical tests or procedures not be compulsory. There is a very heavy burden on the plaintiffs to establish why the previous approach should be altered, why the courts should make a policy decision in relation to a medical procedure for all children, and to establish why the courts should make a decision which, if it were to be made by the State, would more appropriately be made by the legislature.

  177. There is a constitutional presumption that the welfare of a child is to be found within the family unless there are compelling reasons why that cannot be achieved or unless there are exceptional circumstances where parents have failed to provide education for the child: In re J.H. (an infant) [1985] I.R. 375. It is not suggested that the child be removed from the defendants in this case; the child will remain within the family no matter what the decision. However, any intervention by the courts in the delicate filigree of relationships within the family has profound effects.

    The appropriate test for court intervention

  178. A decision in this case involves an application of constitutional principles. It is a weighing and balancing of constitutional principles.

    Medical Test

  179. The test to be applied is not the simple medical test. Medical opinion before the court was unanimous as to the appropriateness of the P.K.U. screening test. However, the test for the court is not the simple test as to whether the benefit of the P.K.U. test outweighs the medical risk. If that were the test, in my view, the decision would be clear and in favour of ordering the P.K.U. test. However, that is not the test to be applied to the case.

    Ward of Court Test

  180. Nor is the test to be applied that of seeking out what would be the decision of responsible parents. The child is not an orphan or a ward of court. Thus the test is not that which would be applied if the child was a ward of court. The entire circumstances relating to the child have to be taken into consideration. They include the parental decisions.

    Constitutional Test

  181. A constitutional test has to be applied. In this case the test involves the weighing of all the circumstances, including parental responsibility, parental decisions, the child’s personal rights, and the rights of all persons involved to and in the family, to determine in these circumstances what is in the best interests of the child. A factor in these circumstances is the medical advice which will carry weight but which must be balanced (in this case) against the parental decision and the rights of the child and the rights of all to and in the family to achieve a decision in the child’s best interests.

  182. It is complex and difficult to weight these different factors one against the other. First, they are of a different essence - a medical analysis on the one hand and social, emotional, constitutional and legal considerations on the other hand - often in juxtaposition. Secondly, they are all profoundly important factors. There is no easy weighing of the scales. The ultimate decision is one to be grounded on fundamental constitutional principles.

  183. The Constitution recognises the family as the fundamental unit group of our society. Even when, as here, it is alleged that parents have failed in their duty to the child and the State endeavours to supply the place of parents it does so with due regard to the rights of the child. The rights of the child encompass the panoply of constitutional rights which include personal rights to life and bodily integrity. However, in addition the child has a right to and in his family. When assessing the welfare of a child - the fundamental concept when analysing the position of a child - complex social, political, educational and health rights of the child in and to his family are important. The bonds which bind a child in a family are strong. However, any intervention by the courts in the delicate filigree of relationships within the family has profound effects. The State (which includes the legislative, the executive and the courts) should not intervene so as to weaken or threaten these bonds unless there are exceptional circumstances. Exceptional circumstances will depend on the facts of a case; they include an immediate threat to the health or life of the child.

  184. The principle behind excluding the State from decision making in relation to the child where parents are exercising their responsibilities and duties is a constitutional principle. It is one of the fundamental principles of the Constitution. The Constitution describes a society which aspires to a community of families. Families are to be protected. This means that State interventions are limited.

  185. In relation to the child, the fundamental principle is the welfare of the child. The welfare of the child includes religious, moral, intellectual, physical and social welfare. These elements must be analysed in light of the facts relating to the child and the family in issue. The court has a constitutional duty to protect the life or health of the child from serious threat and the court has a constitutional duty to protect the family. A just and constitutional balance has to be sought.

  186. If the court were to order the P.K.U. test be given in this case it would effectively mean that the P.K.U. test was compulsory throughout Ireland. This would flow from the fact that the medical risks are classed as minimal for all and the benefit to those cases detected and treated substantial. Such a test would be of universal application. It would mean effectively that parents have no right to refuse. Such a decision would have a far reaching effect. On the one hand it would effectively turn into law something which is at present only departmental policy, a course of action much more appropriately a matter for the executive and legislature. Also, it would establish a very low threshold for court intervention in future cases in relation to children.

  187. The test is whether in all the circumstances it would be constitutional for the court to order that the P.K.U. test be made. As to whether it would be constitutional involves the weighing in the balance of a number of competing constitutional rights and principles.

  188. In light of the circumstances of this case I would not interfere with the parental decision. The plaintiff has no complaint about how the respondents take care of the child, the plaintiff raises only the issue of the P.K.U. test in relation to which the defendants have made the decision to refuse the test for their son in the form offered. They have been fully informed of the medical view but they have taken a decision wider than a purely medical decision and have included factors other than concerns of the physicians. In reaching this opinion I am not in the position of the parents nor am I exercising a parens patriae jurisdiction. I bear in mind the relevant constitutional rights and principles. These include: the right of the child to his fundamental rights; the fact that the paramount consideration is the welfare of the child, which extends wider than the single medical issue; the rights of the child in and to his family; the rights and duties of the parents to make and bear responsible decisions and their liability thereto; the rights of all the individuals to their family in its strengths and weaknesses; and the duty of the Health Board under the Act of 1991 in relation to the child.

  189. Balancing these principles and rights, in the circumstances of the case, I am of the opinion that the court should not intervene to order the screening test on the child. Legislation - s. 3, Child Care Act, 1991 - imposes a duty on the health board to promote the welfare of children in its area. The welfare of the child is of paramount consideration but this must be considered with due regard to the fact that it is usually in the best interests of the child to be brought up in his own family. The legislative duties have to be interpreted in accordance with the Constitution. The State - the Health Board - may intervene in the family, may interfere with the rights of family as a unit, and the rights of the child and parents pursuant to Article 41 of the Constitution, if it is justified pursuant to Article 42.5 when parents have failed for physical or moral reasons in their duty to their children or when other constitutional rights of the child are breached or are in danger of being breached.

  190. The test to determine when there should be an intervention by the courts is established in light of the Constitution, especially Article 40.3, 41 and Article 42.5. Article 42.5 states:

    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.

  191. The question is whether the defendants, while exercising their responsibility and duty to their child under the Constitution (Article 41), failed in their duty to their child, so that the child’s constitutional rights (including the right to life and to bodily integrity) were or are likely to be infringed. In analysing this the child’s rights to and in his family is a factor. Consideration has to be given as to whether the State (whether it be a health board or other institution of the State) as guardian of the common good should by appropriate means endeavour to supply the place of the parents to ensure that the welfare of the child is the paramount consideration, but always with due regard to the natural and imprescriptible rights of the child including his rights in and to his family.

  192. The decision as to the P.K.U. test is one of very, very many which parents make about their children every day. These decisions, medical and otherwise, are usually not challenged by anyone even if they are not in accordance with specific expert advice. It is only in exceptional circumstances that courts have intervened to protect the child to vindicate the child’s constitutional rights. The court will only intervene, and make an order contrary to the parents’ decisions, and consent to procedures for the child, in exceptional circumstances. An example of such circumstances in relation to medical matters may be a surgical or medical procedure in relation to an imminent threat to life or serious injury.

  193. Applying that test to this case I am of the opinion that it has not been established that this is an exceptional case. The defendants exercised their parental responsibility and duty to the child. It has not been established that they have failed in their duty to the child so that the child’s constitutional rights have been or are likely to be infringed, in order that the courts, as guardian of the common good, should intervene to order the taking of the P.K.U. test by way of the blood test as suggested, having regard to the paramountcy of the welfare of the child but with due regard to the rights of the child, including all his constitutional rights.

  194. The decision is that of the defendants, the parents. The responsibility and liability rests with the parents. Once the plaintiff fully informed the defendants about the tests, their responsibility and liability ceased.

  195. There are other methods of screening for the diseases in issue. However, the evidence was that testing by way of hair or urine is not as reliable as by blood. The defendants have indicated that they would make hair and/or urine samples available for screening. However, the department having provided an effective scheme, the plaintiff has no obligation to set up further schemes every time a family finds a national scheme unacceptable.

    8. CONCLUSION

  196. In my opinion the order of the High Court was correct. For the reasons given, I would dismiss the appeal.

    Murphy, J

  197. The history of this matter and the comprehensive arguments of Counsel are faithfully recorded in the judgment of the Chief Justice. There is nothing which I could add to that judgment and nothing would be gained by repeating it. I will gladly adopt the recital of facts provided by the Chief Justice and his careful analysis of the arguments.

  198. The determination of the nature and extent of the rights and duties as between parents and their child has involved a number of problems. The nature and extent of the obligations owed by the State to a child and the circumstances in which those obligations arise create even greater difficulties. However it is the resolution of potential conflict between the duties of parents and the duties of the State which causes the most delicate problems. In the present case may be explored from different aspects.

    • First, there is the medical or scientific area by reference to which the merits and defects (if any) of the P.K.U. test maybe determined by reference to objective scientific criteria. 

    • Secondly, there is the area of moral authority recognised by Articles 41 and 42 of the Constitution as being vested in the Family and parents and identified as rights which are inalienable and imprescriptible.

    • Thirdly, there is the area of potential conflict between the duty of the Courts to vindicate the constitutional rights of individuals and the rights, duties and interests of others in respect of these rights.

  199. No problem arises in the medical or scientific area. The P.K.U. test is used to diagnose with confidence the presence or absence of one or more metabolic conditions any one of which may cause either mental handicap or life threatening illness. There is then the comforting knowledge that these conditions, if discovered early in the life of the child, are susceptible to simple and effective treatment. The carrying out of the test involves an invasive procedure for which the consent of parents is required. However, what this procedure involves is, both metaphorically and literally, a pin prick. No evidence was produced and no suggestion made that there is any medical or scientific view which envisages any possible danger to a patient from the P.K.U. test. In my view it is beyond debate that the performance of a P.K.U. test, viewed in medical terms, is unquestionably in the best interests of the infant tested.

  200. The moral issue is less clear. There are no provisions of the Constitution cognisable by the Courts expressly requiring or permitting the State to provide medical services or social welfare of any kind for any of its citizens. In G v An Bord Uchtala [1980] IR 32 this Court, in considering the principles applicable in granting an order authorising the Adoption Board to dispense with a mother’s consent to an order of adoption under the Adoption Act, 1952, examined the nature and extent of the constitutional rights of the infant. At page 55 of the report under the heading “The Child's Rights” O’Higgins CJ said:-

    The child also has natural rights. Normally, these would be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards the child for physical or moral reasons.

    In his judgment Walsh J made observations to the same effect (at page 67), namely:-

    It has already been decided by this Court in Nicolaou’s case that among the mother’s natural rights is the right to the custody and care of her child. Rights also have their corresponding obligations or duties. The fact that a child is born out of lawful wedlock is a natural fact. Such a child is just as entitled to be supported and reared by its parent or parents, who are the ones responsible for its birth, as a child born in lawful wedlock. One of the duties as a parent or parents, be they married or not, is to provide as best the parent or parents can the welfare of the child and to ward off dangers to the health of the child. As was pointed out by this Court in Ryan v The Attorney General (at page 350), there is nothing in the Constitution which recognises the right of a parent to refuse to allow the provision of measures designed to secure the health of the child when the method of avoiding injury is one which is not fraught with danger to the child and is within the procurement of the parent.

    Article 40, s.3 of the Constitution requires, in general terms, the State to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of all citizens. However, the decision of this Court in The Adoption (No. 2) Bill 1987-1989 IR 656 by establishing that Article 42, s.5 is of general application and not confined to Education (as the heading to the Article might suggest) found that there is a duty on the State in certain circumstances to make good the failure of parents to fulfil the duties - moral or constitutional - owing by them to their children. Article 42, s.5 provides as follows:-

    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 parent but always with due regard for the natural and imprescriptible rights of the child.

  201. The effect of that sub-article can be found in the decision of Geoghegan J - then a Judge of the High Court - in FN v The Minister for Education [1995] 1 IR 409. In that case the applicant was a boy of 12 years of age whose mother was dead and his father unknown. Despite their best endeavours his foster parents were unable to control him. It was clear on the medical evidence that the applicant was in need of special treatment, attention and education and more particularly that this could not be effectively provided save in a secure accommodation where he would be contained and detained. Mr Justice Geoghegan held that the applicant had the right to the facilities which he required and the State the corresponding constitutional duty to provide them.

  202. In the present case the issue is not whether the State is bound to make available the P.K.U. test for any special category of children. That service is already provided for all. The moral and constitutional dilemma is whether the parents having declined to avail of the service the State, either because of its obligation to vindicate the personal rights of the child involved or its default obligations under Article 42.5 is bound to ensure that the available service is indeed availed of. I am firmly of the view that it is not.

  203. I confess that I would be impatient with the attitude of the Defendants/Respondents. I am alarmed by the real possibility (happily not a probability) that the young boy may be a victim of one of the metabolic conditions which the P.K.U. test could so easily detect and that, because of the absence of detection and treatment, he could suffer appalling consequences. In that event at least the North Western Health Board will have the comfort of knowing that they took every possible step to secure the welfare of the infant. The only solace for myself and those Judges taking a view similar to mine would be that we interpreted the Constitution and the law to the best of our fallible ability.

  204. In England the Court of Appeal in Re T (a minor) [1997] 1 AER 906 was faced with the issue whether the Court should override the refusal of a mother to provide her consent to a child undergoing a liver transplant operation which was essential to its continued survival. Waite LJ, having pointed out that all cases depend on their own facts to such degree as to render generalisations impracticable did go on to construct a scale one end of which he described as being

    the clear case where parental opposition to medical intervention is prompted by scruple or dogma of a kind that is patently irreconcilable with principles of child health and welfare widely accepted by the generality of mankind

    He made it clear that in those circumstances “it is the duty of the judge to allow the courts own opinion to prevail in the perceived paramount interests of the child concerned ....” In fact the Court of Appeal refused to provide the consent sought having regard to the operations which the infant had previously undergone and the necessary dependency of the infant on the support of its parents if the liver transplant operation were authorised. Another decision of the Family Division of the High Court in England was cited in support of the appeal herein, namely, in Re C [1999] Fam Div 289. In that case a local authority sought, in accordance with the legislation in that behalf, an order of the Court overriding the wishes of the mother permitting a six months old baby to have a HIV test. The importance and urgency of the test was that the mother herself was HIV positive and the baby had been breast fed. There was a factual similarity between that case and the present in as much as both tests involved the extraction of a blood sample. Unhappily the relevant test for HIV, Polymerase Chain Reaction, (PCR) may not be quite as accurate or reliable as the P.K.U. test and, more particularly, the diagnosis does not guarantee effective treatment but merely better “focused advice on the best course of action to take both while [the child] remains asymptomatic and if she develops the symptoms of disease”. However the two factors which appeared to have weighed most heavily with the trial Judge was

    • first, that any intervention directed by the Court would require the active commitment on the part of the parents in the long term and,

    • secondly, that the parents who had researched intensely the problems of HIV were “far from lone voices in their dissent from mainstream opinion”.

    Nevertheless Wilson J held that the performance of the PCR test was overwhelmingly in the best interest of the child and that that was the appropriate criterion.

  205. It appears to be clearly established in the United Kingdom that where a Court is called upon to make a decision (whether pursuant to statute or their inherent jurisdiction) as to whether a minor should undergo surgery or any medical procedure - see Re T (above) page 914:

    .... the question for the Court was whether it was in the best interests of the child that she should have the operation and not whether the wishes of the parents should be respected.

    A similar authority is exercised in this jurisdiction where, but only where, the applicant is a Ward of Court. In that event the prime and paramount consideration of the Court is the best interest of the ward and, although the views of the committee and family of the ward are factors which may be taken into consideration, they cannot prevail over the Court’s views as to what is in the best interests of the ward (see In the Matter of a Ward of Court (Withholding Medical Treatment) No 2 [1996] 2 IR 79).

  206. The position is different in the present case where the Court is invited, to exercise, not the jurisdiction conferred upon it by particular legislation or in Wardship matters, but the power and duty of the State in a role which is clearly subsidiary to that of the parents. In relation to the Education of their children the relationship between the State and the family is clearly and expressly dealt with in Article 42. The corresponding rights and duties of the State in relation to matters of general medical welfare are unenumerated and ill defined but the subsidiarity of the State to the parents is clearly established. Clearly it would be incorrect to suggest that the State could or should intervene merely because by doing so it could advance significantly the material interests of a child. If such a crude test were permitted then children of less well off parents might be given readily in fosterage to others who, it could be demonstrated, had the capacity to advance the material and, even, moral welfare of the child.

  207. The Thomistic philosophy - the influence of which on the Constitution has been so frequently recognised in the judgments and writings of Mr Justice Walsh - confers an autonomy on parents which is clearly reflected in these express terms of the Constitution which relegate the State to a subordinate and subsidiary role. The failure of the parental duty which would justify and compel intervention by the State must be exceptional indeed. It is possible to envisage misbehaviour or other activity on the part of parents which involves such a degree of neglect as to constitute abandonment of the child and all rights in respect of it. At the other extreme, lies the particular decision, made in good faith which could have disastrous results. In the present case the parents did not present a refusal to the proposed P.K.U. test. Indeed they positively agreed to the test provided it could be carried out on hair or urine samples. The objection of the parents centres exclusively upon the invasion or puncture - as they see it - of the blood cells of the child. No reasoning based on any scientific view or any religious doctrine or practice was cited in support of this firmly stated objection. Nevertheless I do not accept that a particular ill advised decision made by parents (whose care and devotion generally to their child was not disputed) could be properly categorised as such a default by the parents of their moral and constitutional duty so as to bring into operation the supportive role of the State.

  208. If the State had an obligation in the present case to substitute its judgment for that of the parents numerous applications would be made to the Courts to overrule decisions made by caring but misguided parents. Such a jurisprudence and particular decisions made under it would tend to damage the long term interests of the child by eroding the interest and dedication of the parents in the performance of their duties. In my view the subsidiary and supplemental powers of the State in relation to the welfare of children arises only where either the general conduct or circumstances of the parents is such as to constitute a virtual abdication of their responsibilities or alternatively the disastrous consequences of a particular parental decision are so immediate and inevitable as to demand intervention and perhaps call into question either the basic competence or devotion of the parents.

  209. In my view the present case is not one in which the Courts should entertain the application for consent. Accordingly I would dismiss the appeal and affirm the judgment of the High Court.

    Murray, J

  210. The facts and circumstances of this case as well as the arguments of the parties have been comprehensively summarised in the judgment of the Chief Justice. I happily accept his summary of the essential elements of the case which renders it unnecessary to repeat them in this judgment except for the purpose of placing matters in context.

  211. In seeking a mandatory Order from the High Court, and on appeal, from this Court, requiring the Defendants to furnish their consent to the execution of a P.K.U. test, the fundamental argument of the Plaintiffs is that the Court has an inherent jurisdiction derived from the Constitution to grant such an order against the wishes of the parents where it is in the best interest of the child to do so. This in turn raises issues concerning a potential conflict between the constitutional status of the “Family” as a “moral institution” in society and the ambit of the constitutional duty of the State to defend and vindicate the personal rights of citizens in particular children.

  212. The issues arise from a decision by the Defendants to refuse to consent to their son undergoing a P.K.U. test. This is a simple pinprick test where a tiny sample of blood is taken from an infant which will permit a diagnoses as to the presence or absence of one or more metabolic conditions. Any one of these conditions will sooner or later cause either mental handicap or a serious life threatening illness. Should the presence of any of these conditions be diagnosed they are readily susceptible to treatment which will prevent the onset of such serious adverse consequences. The P.K.U. test is a screening process for the benefit of the individual child. On the evidence, the risk that any given child may have one of the conditions in question is a possibility rather than a probability, or to put it conversely, as a matter of probability the child in question does not have any of these conditions. The Defendants say that they are in principle against any kind of invasive procedure which is how they regard the P.K.U. test, which involves a tiny breaking of the skin for the purpose of taking a small sample of blood. On the other hand it has been objectively established that the P.K.U. test, if it can be characterised as invasive at all, is of a minimalist nature with no meaningful adverse risks or consequences for the infant. On the contrary in the case of a positive result it has enormous benefits for the infant who can, with appropriate treatment or therapy be completely protected from potentially disastrous consequences. If the result is negative it provides confidence and reassurance to the family. For these reasons the Plaintiffs say that the Defendants should not be permitted to withhold their consent in the interest of vindicating the rights of the infant. At one stage in the proceedings it was asserted, and no more than that, that the Defendant’s objection was based on religious grounds. This has not been seriously pursued in the proceedings. It seems to me that the objection of the Defendants can be properly described as a prejudice against this type of test which they choose to object to as invasive and for which objection no rational basis has been demonstrated. Their standing as otherwise responsible caring parents has not been called in question. They have made their own judgment in the interests of the child as they see it and, it has to be said, in the context where there is a probability that the child does not have any of the metabolic conditions in questions.

  213. If this court was exercising a parens patriae jurisdiction and stood in loco parentis to the child such as would arise if he was a ward of Court then the Court would be free to decide whether the child should be subjected to a P.K.U. test on the basis of what a prudent and responsible parent would do in the interest of the child. Since the Court does not exercise such a jurisdiction in this case, this approach is not open to it.

  214. A number of judicial decisions from other common law jurisdictions, notably England and Wales, were relied on by the parties and in particular by the Plaintiffs. While these are illustrative how these jurisdictions have wrestled with and resolved complex problems concerning medical treatment or medical intervention in the case of minors, often against the wishes of parents, the Courts in those cases were exercising a jurisdiction different to that exercised by our Courts whose jurisdiction in this particular case is governed by the constitutional provisions referred to below. They would certainly be more in point if this Court was exercising a wardship type jurisdiction which it is not. Moreover, those cases tend to turn on their particular facts none of which appear to me to be analogous to this case concerning as it does the refusal of the parents to submit their child to a medical screening process.

  215. As I have indicated above the fundamental question is a constitutional one as to whether the parents can be compelled to give their consent to the P.K.U. test on the grounds that vindication of the rights of the child require that their refusal be overridden by the State.

  216. The Articles of the Constitution of Ireland relied upon by Counsel include the following:-

    Article 40.3:

    (1)

    The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

    (2)

    The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

    Article 41.1, under the heading “The Family”:

    1

    The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

    2

    The State, therefore, guarantees to protect the Family in its constitution and authority as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

    Article 42.1 under the heading “Education”,

    The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

    Article 42.5:

    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.

  217. The Constitution and in particular Article 41 reflects a shared value of society concerning the status of the ‘Family’ in the social order. It declares that the State recognises the family as a natural primary and fundamental unit in society and in particular as a distinct moral institution possessing rights superior and anterior to positive law.

  218. Article 41.2 confers on State the duty of protecting the Family in its constitution and authority. I do not think it is necessary, having regard to the nature of the issues in this case, to consider the philosophy which underlies the provisions of the Constitution on the family, the terms of the Constitution being sufficiently explicit in themselves for the purposes of addressing those issues. Suffice it to say that the Constitution accords it a special status and protection, which I might add is not wholly unique. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948, having recited in its preamble its recognition “of the inherent dignity and of the equal and inalienable rights of all members of the human family” (in its broadest sense) acknowledges the duty of Member States to secure the rights and freedoms recognised in the Charter which includes, at Article 16(3), “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. The Constitution of Germany (1949) recognises the Family as being under the special protection of the State (Article 6) as does Article 21 of the Constitution of Greece (1975) to mention two states of European Union.

  219. The family also enjoys particular protection under the United States constitution. In Moore v City of East Cleaveland (431 U.S. 494 1977) the Supreme Court observed “This Court has long recognised that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the due process clause of the 14th amendment” (citing, inter alia, Meyer v Nebraska, 262 U.S. 390 [1923] and Pierce v Society of Sisters, 268 U.S. 510 [1925].

    STATUS OF THE FAMILY

  220. Article 41 of the Constitution in recognising the family as a moral institution possessing inalienable and imprescriptible rights, does not purport to establish the family as an institution but recognises its inherent status as such with rights which are “antecedent and superior to all positive law”. In doing so it reflects, as I have mentioned, a shared value of society and places it within, what Finlay, C.J. described in Webb v Ireland [1988] I.R. 353 at 383, as “.... the framework of the society sought to be created and sought to be protected by the Constitution ....”

  221. One of the inherent objects of the Constitution is the protection of liberties. Article 41.2. in providing that “The State, therefore, guarantees to protect the Family in its constitution and authority ....” provides a guarantee for the liberty of the family to function as an autonomous moral institution within society and, in the context of this case, protects its authority from being compromised in a manner which would arbitrarily undermine the liberty so guaranteed.

    In Meyer v Nebraska and Pierce v Society of Sisters (cited above) the Supreme Court of the United States held that the privacy and autonomy of the family are part of the “liberty” protected by the 14th amendment to the Constitution of the United States. In the Pierce decision (which concerned State legislation requiring all children to be sent to public schools) the Supreme Court held

    The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardise its children by forcing them to accept instructions from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognise and prepare him for additional obligations.

  222. I refer to this citation merely as illustrative of the fact that the status and autonomy of the family is one which in a democratic constitutional order may be the subject of guarantees protecting its liberty and autonomy as a fundamental unit in society. The terms of Article 41 of the Constitution are more explicit in that regard than the Constitution of the United States. As Walsh, J. stated in McGee v Attorney General [1973] I.R. 284 at 310

    the individual has natural and human rights over which the State has no authority; and the family as the natural primary and fundamental unit group of society, has rights as such which the State cannot control.

    I think it is well established in our case law that the authority and autonomy explicitly recognised by the Constitution as residing in the family as an institution in our society means that the parents of children have primary responsibility for the upbringing and welfare generally of their children. When exercising their authority in that regard they take precedence over the State and its institutions. In this respect I agree with the observation of the Chief Justice that the family is endowed with an authority which the Constitution recognises as being superior even to the authority of the State itself.

    RIGHTS OF CHILDREN

  223. That is not to say that the authority of parents is absolute or that they are immune from State intervention in all circumstances when exercising that authority. Walsh J., in the passage immediately following the citation from his judgment above in McGee v Attorney General, stated

    However, at the same time it is true, as the Constitution acknowledges and claims, that the State is the guardian of the common good and that the individual as a member of society, and the family, as a unit of society, have duties and obligations to consider and respect the common good of the society .... The power of the State to act for the protection of common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and capable of been reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission to abandon or neglect the common good, or the protection or enforcements of the rights of individual citizens.

  224. In G. v An Bórd Uchtála [1980] I.R. 32 at 55 O’Higgins C.J. stated:-

    The Child’s Rights

    The child also has natural rights. Normally, these would be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards the child for physical or moral reasons.

  225. Furthermore, In Re The Adoption (No. 2) Bill 1987, [1989] I.R. 656 this Court stated:-

    Article 42. s.5 of the Constitution should not, in the view of the Court be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also parental duty to cater for the other personal rights of the child.

    Article 42, s.5, does not in any way mean that the children whose parents have failed in their duty to them become the children of the State or that they are to be disposed of as such. Article 42, s.5, (cited above) permits the State, as guardian of the common good, to endeavour to supply the place of the parent where the parents for physical or moral reasons fail in their duty towards their children.

    CONCLUSION

  226. A general conclusion can be drawn from the foregoing, namely that the family as a moral institution enjoys certain liberties under the Constitution which protect it from undue interference by the State whereas the State may intervene in exceptional circumstances in the interest of the common good or where the parents have failed for physical or moral reasons in their duty towards their children. I do not see anything novel in these conclusions. These matters have been well established in our case law interpreting the relevant provisions of the Constitution. In Ryan v The Attorney General [1965] I.R. 294 the constitutionality of the Act of the Oireachtas providing for the fluoridation of the public water supply was challenged. The Act was challenged inter alia on the grounds that it offended against the rights of parents who objected to their children being subjected to such a regime. That Act represented a policy decision made by the Oireachtas in the exercise of its constitutional functions in the interest of public health. This was the essential context in which that case was decided. In acknowledging that constitutional rights may be regulated by the Oireachtas when the common good requires it Kenny, J. in the High Court judgment, (at p.312) stated

    When dealing with controversial social, economic and medical matters of which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there was no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is constitutional until the contrary is clearly established applies with particular force to this type of legislation.

    While the Oireachtas, in the exercise of its constitutional functions, may in certain circumstances regulate or limit constitutional rights on concrete policy grounds with a view to reconciling them with the common good, this is not of course what has occurred here and not the issue which arises.

  227. What is in issue here is whether the parents have acted in such a manner that exceptional circumstances arise by reason of a breach of duty on their part which would justify the State overriding their personal decision with regard to their child in this case. If the State had a duty or was entitled to override any decision of parents because it concluded, established or it was generally considered that that decision was not objectively the best decision in the interest of the child it would involve the State, and ultimately the Courts, in a sort of micro-management of the family. Parents with unorthodox or unpopular views or lifestyles with a consequential influence on their children might for that reason alone find themselves subject to intervention by the State or by one of the agencies of the State. Similar consequence could flow where a parental decision was simply considered unwise. That would give the State a general power of intervention and would risk introducing a method of social control in which the State or its agencies would be substituted for the family. That would be a infringement of liberties guaranteed to the family. Decisions which are sometimes taken by parents concerning their children may be a source of discomfort or even distress to the rational and objective bystander, but it seems to me that there must be something exceptional arising from a failure of duty, as stated by this Court in The Adoption (No. 2) Bill 1987 (cited above), before the State can intervene in the interest of the individual child.

  228. It would be impossible and undesirable to seek to define in one neat rule or formula all the circumstances in which the State might intervene in the interests of the child against the express wishes of the parent. It seems however to me that there must be some immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically morally or socially, deriving from an exceptional dereliction of duty on the part of parents to justify such an intervention.

  229. In the present case the parents have refused to allow the child to undergo a medical screening test. It is a test which neither the Oireachtas nor the Executive have considered appropriate to make compulsory in the interests of the common good. The parents have made their own judgment. It is a judgement for which they have not been able to articulate a rational basis that would satisfy the objective observer as to its wisdom. From an objective point of view it is manifestly unwise. However it is a judgement that has been exercised on the basis of first of all their objection in principle to what they regard as an invasive procedure and secondly in the context of a child that is at least ostensibly healthy and, on the evidence, is, as a matter of probability, free from any of the conditions which the test is designed to disclose. Unwise and disturbing the decision as it may be I am satisfied that it is a decision which they had the liberty to take and that it is not a case in which there has been such an abdication of responsibility, moral or otherwise as would justify the State’s view being substituted for that of the parents.

  230. I would therefore dismiss the appeal.

    Hardiman J

  231. This is an appeal from the judgment and order of the High Court (McCracken J.) whereby he refused the Plaintiffs the relief they sought.

  232. The case raises the question of whether a court can or should order that a child undergo a minimally invasive medical test despite the strong objection of his parents. As the learned Chief Justice has said, this question in turn raises issues of great significance, transcending the facts of the present case. The minimally invasive test, the P.K.U. test, is, I am satisfied, a diagnostic test fairly capable of description as a medical examination or assessment. It is invasive in a degree which, though slight, would render its being carried out without consent or other lawful authority an assault. There could be no question under the law as it stands of an examination or assessment of this sort being carried out on an adult of sound mind without his or her consent. It is, at present, the invariable practice to seek the consent of the parents of the infants on whom the P.K.U. test is carried out for their consent. This has been the practice for some thirty-five years. In these proceedings, however, the Health Board has taken up the position that this request for consent is a mere empty formula since the parents have no right to refuse to consent, and if they do so their decision in this regard can be overridden by the High Court.

  233. If the Appellant Health Board is correct to this contention it will have established an entirely novel proposition and brought about a position in which a public authority can compel parents to subject a child to an invasive medical test It will thus be seen that the case raises issues of principle of a far reaching kind.

    FACTS AND PROCEEDINGS

  234. I gratefully adopt the thorough statement of the facts of this case contained in the judgment of the learned Chief Justice. I wish to emphasise certain aspects of the background to the case and of the proceedings themselves which seem to me to be of particular importance.

  235. Firstly, the Appellant Health Board does not dispute that the Respondents are careful and responsible parents. This is of particular importance having regard to the terms of Article 40.3(i) and (ii) and Article 42.5 of the Constitution . Moreover, Counsel for the Appellant Health Board stated in submissions that his client had “no complaint of any sort about these parents and no dispute at all with them”.

  236. Secondly, though there is unanimity of medical opinion as to the desirability of the P.K.U. test, no medical or other expert evidence was adduced to support the proposition that the test should be compulsory. Furthermore, the evidence established that the test is available on a very widespread basis in the United States, the United Kingdom and in Europe. It is not compulsory in any jurisdiction. No proceedings to enforce the test on the child of objecting parents have been taken in any country.

  237. Thirdly, the background to and the motivation for the institution of these novel proceedings is significant. In paragraph 8 of the Affidavit of Dr. Eileen Naughton, sworn on behalf of the Appellants, she says:-

    The heel prick test is not mandatory in Ireland, but has always been advised as part of good medical care for all new born infants. I am informed by the Department of Health and believe that approximately six couples have to date refused to allow their children to have the heel prick test each year in Ireland, and up until the recent Child Care Act, it was recommended that a couple would sign a statement to the effect that they took full responsibility for whatever mental handicap or ill effects might ensue if they did not allow their child to be screened. The introduction of the new Child Care Act, I am advised and believe, may impose a different onus on Health providers and carers.

    [emphasis added]

  238. At paragraph 4 of the Affidavit of Dr. Caroline Mason, also sworn on behalf of the Appellants, she says:-

    As more fully explained below, this is not the first occasion of which the Plaintiff has found itself faced with parents who refused to consent to this test, and the Plaintiff is extremely anxious to secure a determination from this Court as to what its obligations and responsibilities lie (sic) where such consent is not forthcoming.

  239. At paragraph 16 of the same Affidavit the Deponent says:-

    .... The issues which are raised by the instant application are of the greatest importance to the Plaintiff both in terms of the discharge of its statutory functions viz-a-vis the child of the Defendants, and in relation to other similar cases.

  240. Furthermore, Counsel for the Health Board on the hearing of this appeal stated that his clients were concerned that they might be exposed to liability if they did not seek to administer the test on a mandatory basis.

  241. Fourthly, the evidence establishes that the test has been available in Ireland since 1966, shortly after its development in the United States. Until the institution of certain District Court proceedings, described below, by the present Appellant in 1997 or 1998, no attempt was made by any Health Board or public authority to administer the test on a compulsory basis. No other test or prophylaxis for general use has been sought to be administered on this basis.

  242. In 1990 the then Minister for Health established a working group on metabolic disorders to make recommendations in relation to the P.K.U. test. Public Health professionals were dominant on this group. In relation to parents who declined the test they recommended as follows:-

    1.5

    Responsibility of parents

    In the case of parents who refuse to allow their infant to be screened, the responsibility for the possible adverse consequences of their decision shifts to them.

    The parents should be requested to signify their refusal in writing.

    [emphasis in original]

  243. Fifthly, at the hearing the Appellant Health Board expressly disavowed reliance on any statutory power to enforce the P.K.U. test, resting their case solely on the Constitution. Yet it clearly emerges from the Plaintiffs principal Affidavit that the Health Board’s shift from a permissive to a coercive policy was rooted, not in any constitutional theory, but on a reading of the Child Care Act 1991. The Board does not now rely on this statute in this connection. It appears that the Act of 1991 is relied on as conferring a specific locus standi on the Health Board, but not for any other purpose. While there was some discussion of the hearing of the appeal of the parens patriae jurisdiction, Mr. Paul Gallagher S.C. in his reply for the Health Board expressly confined the basis of his case to the Constitution.

  244. Sixthly, the Appellant Health Board has previously sought, successfully in at least one case, to administer the P.K.U. test against the will of parents by making an application to the District Court under Section 18 of the Child Care Act, 1991. The text of the section is set out in the judgment of the learned Chief Justice. The section allows the District Court to make an order referred to as a “Care Order” which commits the child to the care of the Health Board for as long as he remains a child or for such period as the Court may determine. If such an order is made then, during its validity, the Health Board is entitled to consent “to any necessary medical or psychiatric examination, treatment or assessment with respect to the child”. It is further provided that such consent is sufficient authority for the carrying out of the examination or assessment in question. In the cases which the Health Board took in connection with the administration of the P.K.U. test, they sought the Care Order only for an extremely short period of time to allow the test to be carried out.

  245. After the Health Board had successfully obtained at least two such orders in the District Court, a couple other than the Respondents in the present case appealed the order made in respect of their child to the Circuit Court (His Honour Judge Deery). Their appeal was successful. On the hearing of this Court, Counsel for the Health Board conceded that the Section 18 procedure was inappropriate where the Board had “no complaint” against the parents.

  246. I believe this was an appropriate concession and that the learned Circuit Judge was correct in his refusal of a Care Order for the purpose sought. In my view it is quite inappropriate to seek to invoke a District Court procedure, plainly envisaged for quite different circumstances, to enforce the P.K.U. or a similar test, when the only jurisdiction claimed to do so is one deriving from a previously untested legal or constitutional theory.

    THE VARYING RELIEFS CLAIMED

  247. Shortly after the Health Board were unsuccessful in the appeal before Judge Deery, they were confronted with the same problem again after the birth, at home, of a further child to the present Respondents. These proceedings were instituted when the Respondents refused to make the child available for the P.K.U. test, as described in the Affidavits filed on behalf of both parties.

  248. In the Statement of Claim filed by the Plaintiffs, they claimed the following relief:-

    (i)

    A declaration that it is in the best interest of (the infant) that a P.K.U. test be carried out on him.

    (ii)

    A declaration that the refusal of the Defendants to consent to the carrying out of a P.K.U. test on (the infant) is a failure by them to vindicate the personal rights (the infant).

    (iii)

    A declaration that the Plaintiff be permitted to carry out the P.K.U. test on (the infant) subject to such conditions as might be directed, and notwithstanding the refusal of his parents, the Defendants herein, to consent thereto.

    (iv)

    An injunction (and if necessary an interlocutory injunction) restraining the Defendants their servants or agents from impeding the execution by the Plaintiff of the aforesaid P.K.U. test.

    (v)

    A mandatory injunction (and if necessary a mandatory interlocutory injunction) requiring the Defendants to furnish their consent to the execution of the aforesaid P.K.U. test on the said (infant).

    (vi)

    Such further or other relief as to the Court shall seem meet.

  249. On the 10th July 2000 the Plaintiff issued a Notice of Motion for interlocutory relief. In this Motion the only substantive reliefs claimed were:-

    (1)

    An Interlocutory Order permitting the Plaintiff to carry out the P.K.U. test on (the infant), subject to such conditions as might be directed, and notwithstanding the refusal of his parents, the Defendants herein, to consent thereto.

    (2)

    An Interlocutory Order restraining the Defendants their servants or agents from impeding the carrying out by on or behalf of the Plaintiff of the aforesaid P.K.U. test.

  250. The hearing in the High Court seems to have proceeded on the basis of the reliefs claimed in the Notice of Motion. However, on the hearing of this appeal, Counsel on behalf of the Health Board in the course of his reply stated that his clients were not now seeking any but declaratory relief i.e. the reliefs claimed in paragraphs (i) and (ii) of the prayer in the Statement of Claim.

    OBSERVATIONS ON THE ABOVE

  251. It appears to me that the following observations can fairly be made on the basis of the undisputed evidence:-

    (1)

    The P.K.U. test was available in Ireland for a period of over thirty years during which it was refused in each year by a small number of parents. During the whole of this period no thought of a constitutional power to enforce the test on the children of unwilling parents occurred to any public authority.

    (2)

    On the evidence of Dr. Naughton, it was the coming into effect of the 1991 Act which led the Health Board to think that their obligations in relation to the test had changed, or may have done so. But the Health Board’s case against the parents in the present case is not advanced on the basis of any provision of the Act.

    (3)

    The Health Board seeks a determination of its rights and obligations in relation to the Respondent’s child “and other similar cases”. The case is therefore taken by the Health Board as a test case intended to yield a result of general application.

    (4)

    Although the P.K.U. test is well known world-wide and widely available in all First World Countries as well as elsewhere, this is the first attempt anywhere to carry out this diagnostic test compulsorily on a child whose parents are unwilling. The case is accordingly utterly novel.

    THE ISSUE

  252. No issue was taken by the Respondents with the proposition that the P.K.U. test is undoubtedly in the best interests of the child, if those interests are to be determined medically, in an objectively reasonable fashion. It is expressly conceded by them that if the case were to be determined on the basis of what is considered medically advisable, or of what the vast majority of conscientious parents actually do, they would inevitably lose the case. The issue is quite different. It relates to whether a court may enforce on parents who are careful and conscientious a view of their child’s welfare which is rational but quite contrary to the parents sincerely held but non-rational beliefs. This question of welfare arises in the context of an invasive diagnostic test and not of an immediate and life threatening emergency.

  253. I do not intend the term “non-rational” to be necessarily derogatory: many of mankind's dearest and most beneficent beliefs have been non-rational in the sense of being incapable of purely rational justification. So, of course, have some of its greatest and most maleficent illusions. Ant not infrequently these latter have assumed a cloak of scientific irrefutability.

  254. In his judgment in this case, the learned Chief Justice mentions the well known American case of Buck v Bell 274 US 200. I respectfully agree with all that he says. The case in my view is a chilling example of logic, rationality or utilitarianism taken to an extreme which subverts the essential human dignity of the people involved.

  255. Buck v Bell was the attempt of Carrie Buck, an inmate of a State institution for the “feeble minded” to avoid compulsory sterilisation on the basis, alternatively, of the equal protection clause and the due process clause of the 14th amendment to the United States Constitution. To our contemporary sensibilities it seems outrageous that she found no protection. The heart of the opinion of Justice Oliver Wendell Holmes who spoke for the Court apart from one dissentient, was as follows:-

    We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes. Three generations of imbeciles are enough.

  256. The author of this opinion was perhaps the greatest common law judge of the 20th century, and, in the opinion of Judge Richard Posner, the best read judge in the history of the United States Supreme Court. That such a person could hold and express these views emphasises the fact, now difficult to realise imaginatively, that in the 1920s and 1930s a belief in eugenics, and in sterilisation as a means of achieving the objects of eugenics, was widespread in circles which would have thought themselves advanced or progressive. These beliefs found advocates in the forefront of the medical and scientific communities, and did not want for legislative and judicial facilitators. It was the revelation of practices in Germany and Russia during and after the Second World War which destroyed the fashion.

  257. There is, of course no comparison whatever between the practice Justice Holmes mandated and that in question here. The learned trial judge in this case also referred to vaccination and expressed the view that a stronger case could be made for compulsion in respect of some forms of it than for P.K.U. But vaccination is not akin to sterilisation. In any event the analogy to compulsory vaccination rests on the unexamined assumption that feeble mindedness begets crime. But Buck v Bell occurs to, and disturbs, every lawyer who approaches the subject of compulsory medical examination or treatment, as it occurred to Counsel on both sides of this case. The lesson of it to my mind is that it is better to hesitate at the threshold of compulsion, even in its most benevolent form , than to adopt an easy but reductionist utilitarianism whose consequences may be unpredictable. Ample scope must be given to the fundamental values of human dignity, as well as those of positive logic. This, perhaps, is reflected in the citation from Denham J. set out later in this judgment, where, speaking of the free decision to consent or not to the medical treatment of an adult she says:-

    It is not necessarily a decision based on medical considerations. Thus medical treatment may be refused for other than medical reasons or for reasons most citizens would not regard as rational. ....

  258. The impossibility of dealing specifically with the infinitely varied reasons thrown up by individual cases underlies the general requirement that all recipients of medical examination or treatment must be volunteers. There are clearly exceptions to this, as in the case of infectious diseases, based on social need, and specifically identified by law.

  259. But the least that the fundamental values require is that a proposed mandatory test such as that in question here should be justified in principle and not simply on the basis of a purely utilitarian rationale.

    STATUTORY PROVISIONS ON CONSENT

  260. The Plaintiff is a statutory body and all of its powers are of statutory origin. They arise under a considerable number of Acts going back over half a century to 1947.

    The Health Act of 1953 provides at Section 4:-

    (1)

    Nothing in this Act or any instrument thereunder 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.

    The Health Act of 1953 is one of the legislative measures described as the Health Acts. Section 3(4) of the Child Care Act, 1991 provides:-

    The provisions of the Health Acts 1947-1986, and the Health (Amendment) Act 1987, shall apply in relation to the functions of Health Boards and their officers under this Act and the powers of the Minister under those Acts shall have effect accordingly as if those Acts and this Act were one Act.

  261. It is clear that the Child Care Act, 1991 must, in the absence of any challenge to its constitutionality, be presumed to be constitutional. It is equally clear that a child who is the subject of a Care Order under Section 4 of the Act is no longer a person for whom, for the purposes of consent to a medical examination, his parents are responsible. But the child at the centre of the present case is not the subject of a Care Order and is a person for whom his parents are responsible. That being so it is clearly the legislative policy that they cannot compelled by virtue of the Health Acts, or the Child Care Act,1991, to submit the child for health examination or treatment. This may not exclude the possibility of another obligation to do so. But it does seem to be a clear indication of legislative policy on parental discretion, contained in an Act equally entitled to a presumption of constitutionality.

  262. Section 44 of the Health (Mental Services) Act, 1981 empowers the Medical Council, with the consent of the Minister, to make rules in relation to the application to any person of specified therapeutic procedures in connection with mental illness. It then provides:

    (2)

    It shall not be lawful to apply or cause to be applied any procedure so specified unless the person has given his consent in the manner provided for in the rules or, notwithstanding the provisions of Section 4 of the Health Act, 1953, where a person has not the mental capacity to give his consent, consent is given by a person specified in the Rules.

  263. Though this provision creates an exception the general rule constituted by Section 4 of the 1953 Act, it appears to me to evidence the legislatures acknowledgement, in 1981, that the general position continued unaltered in relation to psychiatric treatment except in this respect.

  264. The Health Acts 1947 and 1953 are the basis of a health service provided free of charge to many citizens. The 1947 Act repealed three Victorian Vaccination Acts passed between 1858 and 1868. The 1947 Act itself contained in Part III, Sections 21 to 28, provisions for a “mother and child service”. This included in Section 25 an obligation to present a child, unless certified exempt, for medical inspection. These provisions were themselves repealed by the 1953 Act which also contained in Section 4 the provisions quoted above.

  265. The Bill which became the 1953 Act had been announced in a white paper published in July, 1952 and stating an intention:-

    To extend health services, including a mother and child service, in accordance with the general intentions of the 1947 Health Act and with the provisions of the Constitution and its social directives.

  266. In the Memorandum to government on the 15th November, 1952 this change was prefigured as follows:-

    Part III of the Health Act, 1947, which relates to the proposed mother and child health service, would, if it were retained, have to be amended to such an extent that practically every section would be materially altered. It is proposed, therefore, to repeal this part of the Act of 1947 and to include such of its provisions as are appropriate for attention in the new bill. The provisions relating to compulsory medical inspection and the requirement on school managers to provide facilities for such inspections will be left out.

    The “Heads” of the Health Bill, 1952, circulated with the last mentioned document included Head 24 as follows:-

    The voluntary nature of service: Provide that nothing in the Act with the exception of Head 34 shall be construed as imposing an obligation on any person to submit himself or any person for whom he is responsible to health examination or treatment.

    Note: This provision is intended to make clear the voluntary nature of the legislation. A similar provision in relation to Part III of the Health Act,1947 was intended, if that part had been retained.

  267. Head 34 related to the compulsory treatment of congenital syphilis in infants. This was explained in a note as being required because “The parents of such children have not generally got a normal sense of responsibility towards their children”.

  268. The Health Bill, 1952 as introduced contained the present Section 4(1) but not 4(2). This was introduced as an amendment at the Committee stage and passed after a debate marked by conspicuous, and indeed competitive, commitment to the principle of voluntarism.

  269. While an historical approach to the construction of the Constitution, based on the state of law or public opinion at or near the time of its passing, is not primary or the only approach to construction, I do not believe that the pre-parliamentary or parliamentary history of the Act of 1953 is consistent to the smallest degree with the view that a citizen was, or intended to be, under any obligation to present himself or a child for whom he was responsible, for any medical diagnosis or treatment. On the contrary, the principle of voluntarism was carefully and specifically enshrined.

  270. Accordingly, it appears to me that the principle of voluntarism in respect of medical treatment is plainly established in so far as public medical services are concerned. This extends to a patient himself or to a person making decisions as to medical treatment for another person for whom he is responsible.

  271. The sole statutory exceptions, other than that quoted above, relate to infectious or communicable diseases.

    MEDICAL TREATMENT AT COMMON LAW

  272. This statutory position appears to reflect the position at common law, where consent is the basis of any lawful medical treatment. I would respectfully endorse what was said in this regard by Denham J. in Re A Ward of Court (withholding medical treatment) No. 2 [1996] 2IR 79:-

    Consent

    Medical treatment may not be given to an adult person of a full capacity without his or her consent. There are a few rare exceptions to this e.g. in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent, it may be trespass against the person in civil law, a battery in criminal law and a breach of the individual’s constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus medical treatment may be refused for other than medical reasons or reasons most citizens would not regard as rational but the person of full age and capacity may make the decision for their own reasons.

    If a patient is a Minor, then consent may be given on their behalf by parents or guardians. If the patient is incapacitated by reason other than age, then the age of capacity to consent arises. In this instance, where the patient is a Ward of Court, the Court makes the decision.

    THE ATTEMPT TO DISPENSE WITH CONSENT

  273. It thus appears that, subject only to “a few rare exceptions”, all of which are specified by statute or well identified at common law, consent is required for medical treatment and treatment without such consent is a trespass, a battery, and a breach of constitutional rights. Denham J’s conclusion in relation to minors - that consent may be given on their behalf by parents or guardians - seems manifestly correct in the light of the constitutional provisions as to the family and education, considered below. There is admittedly no statutory provision which can assist the Appellants. Accordingly, the only basis on which relief is sought is a constitutional one. Specifically, they claim that the refusal of the Defendants to consent to the carrying out of the test is “a failure to vindicate the personal rights of the infant”.

  274. The test is which is the subject of this litigation is the P.K.U. test offered by the Plaintiffs. It is the refusal to consent to that test that the Plaintiffs complain of: they do not, for example, claim that the Defendants are obliged themselves to arrange to have the test carried out in the private sector. As their claim was originally formulated, they also sought an injunction restraining the Defendants from interfering with the carrying out of the test by them, and also an injunction requiring the Defendants to furnish their consent to the execution of the test.

  275. It thus appears that all the reliefs claimed are directed at denying the Defendants their right not to consent to the execution of the P.K.U. test by the Plaintiffs as Health Board; to compel them to consent to such execution; and to compel them to submit a person for whom they are responsible to the test.

    SECTION 4 AND THE OBLIGATION ASSERTED

  276. In asserting their entitlement to such reliefs on constitutional grounds, it appears to me that the Plaintiffs are taking, or approaching, a position whose logical corollary is that Section 4 of the 1953 Act, or part of it, is unconstitutional. If they are successful, the Defendants will be compelled to present a person for whom they are responsible for treatment, the treatment being one which, they claim, is contrary to their religious beliefs. Moreover, the treatment for which they will be compelled to present their son is one provided as a service by the Health Board. This is the very situation that Section 4 of the Act was designed to avoid, by enshrining the notion of personal or parental consent. It is true that Section 4(1) of the 1953 Act limits itself to preventing the Health Acts from being read as imposing obligation of the kind specified on any person. The Plaintiffs contend that, accordingly, the provision is not inconsistent with such a person being under an obligation of the relevant kind by virtue of the Constitution. This is logically true, though I have no doubt that the possibility of a constitutional obligation to present one’s child for medical diagnosis against one’s wishes was not present to the mind of the legislature in 1953. Section 4 would make no sense otherwise.

  277. Section 4(2) is expressed in a different form. It seems clear that Defendants here are persons who availed themselves of Health Board Services: indeed, this is how the Health Board came to be aware of them. By subsection (2) such a person “.... 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”.

  278. It appears to me that this subsection, unlike the proceeding one, is not confined merely to preventing the Health Acts being read in a particular fashion but states plainly as a matter of law the person availing himself of service under the Acts shall not be under an obligation of the relevant kind. In the course of his letter of the 11th May, 2000 the first-named Defendant in explanation of the failure of his wife and himself to consent to the test said:-

    We refuse to allow blood samples being taken, as these can only be obtained by invasive measures, such as puncturing a blood vessel. It is our strong religious belief that nobody is allowed to injure anybody else. We hope that through this clarification court proceedings can be averted.

  279. The last sentence is a reference to the parents willingness to allow the infant’s urine or hair to be tested, which was unacceptable to the Health Board.

  280. Accordingly, I consider it more than arguable that the case made on behalf of the Appellants is one involving as a logical corollary the proposition that subsection 4(2), at any rate, is repugnant to the Constitution. If this were so, it would have the consequence that the Plaintiffs would have had to join the Attorney General in their proceedings. This would in my view have been desirable, having regard to the general effect which the Plaintiffs plainly intend the result of the proceedings to have.

  281. Despite this, I do not propose to decide the present case on the basis indicated. Firstly, we were not invited by the Respondents to do so. Secondly, their assertion of a religious motivation for refusal occurs only in correspondence and not in the subsequent affidavits and is of a somewhat vague nature. It was not one which the Plaintiffs were seriously challenged to rebut. It may however be central in another case.

    THE ALLEGED CONSTITUTIONAL OBLIGATION

  282. The relevant Articles of the Constitution appear to be Article 40.3, Article 41.1, Article 42.1 and Article 42.5. The texts of these Articles are set in the judgment of the learned Chief Justice.

  283. The only specifically constitutional claim in the Plaintiff’s proceedings is that contained at paragraph (ii) in the Statement of Claim:-

    A declaration that the refusal of the Plaintiff to consent to the carrying out of P.K.U. test on (the infant) is a failure by them to vindicate the personal rights of (the infant).

  284. This, plainly, is a reference to the wording of Article 40.3.1 and 2. The first of these sub-articles is a guarantee by the State “in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of a citizen”. The following sub-article obliges the State to protect and vindicate certain rights in particular, again “by its laws”.

  285. Accordingly, this formulation of the claim immediately confronts us with the salient feature that there is no legislation on this topic, other than that referred to above whose effect is to enshrine voluntarism and parental responsibility. Mr. O’Donnell submitted, and the learned trial judge agreed, that this a significant factor. I concur with this.

  286. In G v An Bórd Uachtála [1980] IR 32, Finlay P. (as he then was) considered the constitutional rights of a child which he said included:-

    A constitutional right to bodily integrity and .... and an unenumerated right to be reared with due regard to her religious moral intellectual physical and social welfare. The State, having regard to the provisions of Article 40.3.1 of the Constitution, must by its law defend and vindicate those rights as far as practicable.

  287. Where the State has legislated in the interest of vindicating and defending the rights of children, such legislation has fallen to be interpreted in the light of the provisions of the Constitution generally and of Articles 41 and 42 in particular. Thus, in Re J.H. (An infant) [1985] IR 375 there was a contest as to custody between the parents of a child and adopting parents. Pursuant to Section 3 of the Guardianship of Infants Act, 1964 the Court was obliged to-

    regard the welfare of the infant as the first and paramount consideration.

    In construing the Act Finlay C.J. held that:-

    .... Notwithstanding the presumption of validity which attaches to the Act of 1964 and the absence of a challenge in these proceedings to that validity, the Court cannot, it seems to me, as an organ of the State, supplant the right to education by the family and the parents which is conferred on the child by the Constitution unless there is established to the satisfaction of the Court a failure on the part of the parents as defined in Article 42.5 and 'exceptional circumstances’.

  288. Finlay C.J. continued:-

    I would, therefore, accept the contention that in this case Section 3 of the Act of 1964 must be construed as involving a constitutional presumption that the welfare of the child, which is defined in Section 2 of the Act in terms identical to those in Article 42.1, is to be found within the family, unless the Court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where the parents have failed to provide education for the child and continued to fail to provide education for the child for physical or moral reasons.

    A CONSTITUTIONAL PRESUMPTION

  289. If, in a custody dispute being decided in accordance with established statutory criteria the presumption described in the last extract exists, what of a situation there is no relevant statute at all?

  290. I believe that, in such cases, even more obviously than in custody cases where there is a statutory framework, a presumption exists that the welfare of the child is to be found in the family exercising its authority as such. If this presumption applies in the construction of a statute which makes no express reference to the authority of the family, it must, a fortiori, apply where the contest is between the parents of the child and a stranger, in this case a statutory body, outside any statutory framework.

  291. This seems to me to follow from the exceptionally strongly worded provisions of Articles 41 and 42 of the Constitution and from the rights of the child thereunder. I would respectfully adopt the statement of those rights set out at page 394 of the report of the judgment of Finlay C.J. in JH as follows:-

    (a)

    To belong to a unit group possessing inalienable and imprescriptible antecedent and superior to all positive law (Article 41.1).

    (b)

    To protection by the State of the family to which it belongs (Article 41.2).

    (c)

    To be educated by the family and to be provided by its parents with religious moral intellectual physical and social education (Article 42.1)

  292. Where, as in this case, the parents are conceded to be “careful and responsible” it seems to me that this presumption is a powerful factor. I would respectfully follow the statement of Finlay C.J. immediately following that last quoted as to the circumstances in which their role might be supplanted.

    The State cannot supplant the role of the parents, in providing for the infant the rights to be educated conferred on it by Article 42.1 except ‘in exceptional cases’ arising from a failure for moral or physical reasons on the part of the parents to provide that education (Article 42.5).

  293. The presumption to which I have referred is not, of course, a presumption that the parents are always correct in their decisions according to some objective criterion. It is a presumption that where the constitutional family exists and is discharging its functions as such, and the parents have not for physical or moral reasons failed in their duty towards their children, their decisions should not be overridden by the State and in particular by the Courts in the absence of a jurisdiction conferred by statute. Where there is at least a statutory jurisdiction, the presumption will colour its exercise, and may preclude it.

  294. The presumption is not of course conclusive and might be open to displacement by countervailing constitutional considerations as perhaps in the case of an immediate threat to life.

  295. I do not consider that an alternative approach to one based on the presumption I have described arises from the judgment of Ellis J. in PW v AW (unreported) High Court 21st April, 1980. This was a custody case where, due to psychiatric illness “valid objection (could) be taken to the mother’s ability to provide for her child’s welfare”. With the support of the child’s father, custody was given to an aunt who was in a better position to provide for the child. The child’s mother, AW, challenged the constitutionality of the provision in the Guardianship of Infants Act permitting custody to be given to a person other than a parent and it was in this context that Ellis J., at page 73 of the judgment made the comments quoted in the judgment of the learned Chief Justice.

  296. I do not consider the approach of Ellis J. to be consistent with that outlined in the Supreme Court judgment in JH, cited above. Nor do I consider that, in order to arrive at the conclusion that the relevant section of the Guardianship of Infants Act was consistent with the provisions of the Constitution, it was necessary for Ellis J. to find as he did. Having regard to his preparedness, as outlined at page 72 of the judgment, to find that the mother had failed in her duty to the child for physical reasons, the statutory authority to make the Order which she challenged seems fully consistent with Article 42.5 of the Constitution.

  297. This constitutional provision was considered in In Re Article 26 of the Constitution & the Adoption (No.2) Bill 1987. The Court held that:-

    Article 42.5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that Section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying only the parental duty to educate but also the parental duty to cater for the other personal rights of the child.

    ARTICLE 42.5

  298. It appears, on the basis of the last quotation, that Article 42.5 is broad enough in its terms to cover the range of parental duties, and not merely those relating to education. This being so, it appears that the presumption that the welfare of the child is to be found in the family exercising its authority as such is equally broad in its scope and that any rebuttal or displacement of it will normally involve invocation of the provisions of Article 42.5.

  299. Article 42.5 is in the nature of a default provision. Under its terms, the State may in exceptional circumstances, upon a failure of parental duty for physical or moral reasons, become a default parent. The sub-Article does not constitute the State as an entity with general parental powers, or as a court of appeal from particular exercises of parental authority. Nor does it, in my view, allow a court to derive uniform rules for the exercise of that authority in detail.

  300. It does not seem to me possible to hold that the respondent parents have failed in their duty towards their children. I entirely endorse what the learned trial judge has said in this regard. I do not view a conscientious disagreement with the public health authorities as constituting either a failure in duty or an exceptional case justifying State intervention. I agree with the learned trial judge when he says:-

    If the State were entitled to intervene in every case where professional opinion differed from that of the parents, or where the State considered that the parents were wrong in their decision, we would be stepping rapidly towards the Brave New World in which the State always knows best. In my view that situation would be totally at variance with both the spirit and the word of the Constitution.

  301. The strength of the language in which, in Article 41 of the Constitution, the prerogatives of the family are acknowledged has often been remarked upon. The obligation of the State, set out in Article 41.1.2 “to protect the family in its constitution and authority” is entirely consistent with the restricted statement, in Article 42.5, of the circumstances in which alone the State “may endeavour to supply the place of the parents”. Analogies or precedents from jurisdictions lacking this distinctive assertion of the position of the family are of a limited utility in the exposition of the powers of the State, or other public bodies, under the Irish Constitution.

  302. It has been observed that Article 41 and 42 of the Constitution “are generally thought to have been inspired by papal encyclicals and by Catholic teaching”. (Kelly, The Irish Constitution third edition page 991). Counsel for the Respondents in this case have submitted, in my view convincingly, that the same approach can be grounded otherwise and have referred us to an American academic authority, Professor Joseph Goldstein. The latter suggests that the common law “reflecting Bentham’s view, has a strong presumption in favour of parental authority free of coercive intrusions by agents of the State”. I would endorse this as a description of the Irish constitutional dispensation, even if any reflection of the views of Jeremy Bentham is coincidental. I do not regard the approach to the issue in the present case mandated by Articles 41 and 42 of the Constitution as reflecting uniquely any confessional view.

    A SIMPLE ISSUE?

  303. The Plaintiff’s case was put on the basis that the welfare of the child is the first and paramount consideration, by virtue of Section 3 of the Guardianship of Infants Act and that, accordingly:-

    The question thus presents itself as a simple one: is the administration of the test a matter which in the light of the unanimous medical opinion as to the benefit of the test .... of such benefit to the infant that the same should be directed by the Court, irrespective of the refusal of the infant’s parents to consent to it.

  304. It seems to me that this is to oversimplify the issue by failing to confront or consider the weight which our Constitution requires to be given to the views and authority of the parents. When that issue was addressed, separately and much later in the Appellants submissions, it was not in fact contended that Article 42.5, in the circumstances of this case, entitled the State to “supply the place of the parents”. Instead, it was contended that the intervention proposed fell short of this: it amounted to a “supplanting” of parental authority in one particular only, but not a “replacement of the parents in any substantive way”. Immediately afterwards it was submitted that Article 42 “does not preclude a State intervention .... falling short of the supplanting of the parental place referred to in it”. These submissions do not seem wholly consistent with each other.

  305. I do not accept that the authority of the family or role of the parents is capable of subdivision in this fashion. Articles 41 and 42 of the Constitution would be ineffective as guardians of the family “in its constitution and authority” if that authority were capable of piecemeal erosion or suspension in any way other than that provided by the Constitution itself.

  306. I am further concerned by the express failure of the Plaintiffs to identify any ne plus ultra or limit in principle to the allegedly simple test set out in their submissions and quoted above. Though they disclaimed any present intention but the application of the P.K.U. test to a small number of children , they declined to limit the application of a “medical benefit” criterion in any express fashion and even declined, in answer to a specific question, to concede that the approach could never be used to justify the compulsory treatment of an adult person of sound mind. These omissions perhaps underline the complexity of the subject matter and the unpredictability of future developments of the deceptively simple test the Health Board proposes.

  307. Alternatively, it was submitted that Article 42.5 was not exhaustive of the grounds of which the State might intervene.

  308. It is quite clear, on both principle and authority, that “the right and duty of the State to intervene upon the failure of parents to discharge their duty to a child can be considered both under Article 42.5 and under Article 40.3”, as it was put in the Adoption Bill reference case, cited above, at page 663. But the argument based on this is circular, for the latter provision mandates intervention by or under the laws of the State. This legislative intervention is absent. As Kenny J. said in Crowley v Ireland [1980] IR 102:-

    The obligation imposed on the State by both subsections of Article 40.3 is as far as practicable by its laws to defend and vindicate the personal rights of the citizen. It is not a general obligation to defend and vindicate the personal rights of the citizen. It is a duty to do so by its laws, for it is through laws and by laws that the State expresses the will of the people who are the ultimate authority.

    [emphasis added]

  309. I return below to the effect of the absence of legislation on the Courts power or willingness to derive the parental duty alleged by the Health Board to exist, by the development or extension of legal principles.

    RYAN v ATTORNEY GENERAL

  310. The appellant Health Board, in its submissions, placed considerable emphasis on this case. But it was a case of a wholly different character to the present one. There, the Plaintiff sought to impugn certain sections of a Statute, the Health (Fluoridation of Water Supplies) Act, 1960. It is impossible to construe the dicta in the judgments outside this context. The extract from the judgment of Ó Dhálaigh C.J. at page 350 of the report relied upon by the Plaintiff ends with the statement:-

    There is nothing in the Act which can be said to be a violation of the guarantee on the part of the State to protect the family in its constitution and authority.

  311. A similar issue would arise in relation to the P.K.U. test if it were made mandatory by legislation. The issue would not however be identical: the Act of 1960 empowered the public authorities to fluoridate the supply of water but did not of course require that any individual or family drink from the fluoridated supply. In the judgment of the High Court, Kenny J. said at page 314 of the report:-

    The Plaintiff has no legal right to a supply of piped water and the Act of 1960 does not impose any obligation on her or on the members of her family to drink or use the water coming through the piped water supply. True that water today is a necessity of life and that the Plaintiff probably has a right of access to a supply of water, but this does not give her a right to a supply of water which has not been fluoridated through the piped water supply. On this ground alone the case fails. Moreover, I am satisfied that the Plaintiff and any of the citizens of the State can, by the expenditure of a few pounds, remove all or almost all of the fluoride ions from the water coming through the piped water supply.

  312. Although the Supreme Court were not as convinced as Kenny J. of the ability to filter out fluoride, the case in both courts proceeded on the basis that there was no obligation to drink from the public supply of fluoridated water. The Plaintiff failed to prevent fluoridation of water and the reasons for her failure appear clearly at page 349 of the report. Having set out the nature of the dental conditions sought to be combated Ó Dálaigh C.J. continued:-

    To deal with the problem the Oireachtas has chosen a method, namely the fluoridation of the public water supply. The Plaintiff has failed to rebut the evidence that this is not only the most effective method but is indeed the only effective method .... the Court does not accept that the fluoridation of water is or can be described as, the mass medication or mass administration of ‘drugs’ through water. It has already been pointed out that the fluoridation is a process by which an element which naturally occurs in water is, in the case of a particular water supply, raised to a level of concentration at which it is found in wholesome water and that the fluoride ions thus added are not different in nature or action from fluoride ions occurring naturally in water.

  313. In Ryan’s case, the Plaintiff failed to impugn a statute which permitted the fluoridation of water but did not compel anyone to drink it. In this case the Plaintiff seeks to infer or derive from the Constitution a non-statutory duty positively to oblige the Respondents to submit their son to the P.K.U. test. The Respondents do not seek to prevent any other family having the benefit of the test but merely to exempt themselves. The cases are thus quite dissimilar. The ratio decidendi of Ryan wholly derives from the fact that the Court was considering the constitutionality of a statute. Kenny J. said:-

    When dealing with controversial social economic and medical matters in which it is notorious that views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decisions on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefits which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.

    In the final paragraph of the Supreme Court judgment it is said:-

    The Court has no concern with the legislative policy of the Oireachtas. Its function is only to examine the Statutes in which that policy is embodied and to see if its provisions contravene the provisions of the Constitution. There is a presumption that a statute is constitutional and the onus of showing that it is unconstitutional rests on the Plaintiff who attacks it. Where on the face of the Statute nothing unconstitutional appears and the attack is based on its alleged effect, and the conclusion as to the effect has to be based on evidence of a disputed character, a Plaintiff must fully satisfy the Court that its effect is such as he contends.

  314. I do not consider that Ryan’s case can be read as providing any authority for the proposition that a duty to submit a child for the P.K.U. test can be derived by the Courts from the provisions of the Constitution.

    DECLARATION OF NEW DUTIES BY THE COURT

  315. I have already commented on the novelty of the duty sought to be imposed on the respondent parents in these proceedings. It is unprecedented either domestically or internationally. This is being so it appears appropriate to recall what was said in the context of another attempt to assert a right or obligation independent of any statutory framework. In L v L [1992] 2IR 77 there was an assertion of a right by a spouse to a share in matrimonial property by virtue of Article 41.2 of the Constitution. Finlay C.J. said at page 107 of the report:-

    .... I conclude that to identify this right in the circumstances set out in this case is not to develop any known principle of the common law, but is rather to identify a brand new right and to secure it to the Plaintiff. Unless that is something clearly and unambiguously warranted by the Constitution or made necessary for the protection of either a specified or unspecified right under it, it must constitute legislation and be a usurpation by the Courts of the function of the legislature.

  316. In my judgment in the recent case of Sinnott v Minister for Education delivered the 12th July, 2001, I considered the constitutionally mandated separation of powers in some detail. I do not intend to repeat that discussion here. In any event the cases are somewhat different by reason of the absence of any significant need for public expenditure here. I would however observe that in a case such as the present it is particularly desirable from every point of view that any initiative to compel parents to subject their children to a test such as P.K.U. be based on statute law and not on an application such as the present. I am expressing no view whatever as to whether such legislation would be desirable or otherwise. But if it were thought that a parent should be deprived of a right to refuse to consent to the P.K.U. test, or any test, inoculation, examination, or procedure, that would be a major departure in public policy. The legislature, and not the Courts, are in the best position to judge whether such an innovation is necessary, proportionate or desirable, whether there are countervailing considerations of a social or medical nature or otherwise; whether there exists sufficient consensus in the community to make legislation feasible or desirable and many other relevant considerations. Compulsory medical diagnosis or treatment in any form is, for the reasons identified in the judgment of the learned Chief Justice, a topic regarded with some unease throughout the civilised world. The degree to which this unease should be recognised, whether precautions can be taken to allay legitimate fears, and the fundamental question of whether the imperative behind the P.K.U. test or any other test is sufficient to justify coercion, are all matter best addressed legislatively. As McCarthy J. said in a completely different context in Russell v Fanning [1998] IR 505:-

    I question how a court determines (a) A question of national policy; (b) What is the decision on it; (c) Whether or not that decision is that of the people; (d) How did the people decide such a question; (e) How the requirements of the common good were taken into account.

  317. Moreover, if and when the legislature decides to introduce legislation of the relevant kind it will be for the Courts to determine, if the occasion arises, whether such legislation is consistent with the provisions of the Constitution. If the Court is called upon to make this decision, it will have the benefit of evidence and argument on a specific provision, probably in circumstances where the parties are more on a footing of equality from the point of view of resources than the present Plaintiffs and Defendants. If the Court themselves impose a novel obligation, the constitutionally envisaged arrangement whereby one organ of government makes law and another decides on its constitutionality, would be inhibited in its operation.

  318. I have already referred to the portions of the Affidavits filed on behalf of the Plaintiffs which make it clear that what the Health Board seeks from these proceedings is a ruling of general application. I accept that this Court is confined to considering the case in the light of the evidence adduced and the submissions advanced. As the learned Chief Justice says in his judgment it is not impossible that another result might be achieved in a different case decided on different evidence.

  319. I consider however that, in practice, declarations of the kind now sought would have the effect if not the legal character of legislation for the vast majority of persons affected. It would, to say the least, have a “chilling effect” on other persons sharing the Respondent’s view or some version of it. This consideration might not preclude the Courts from acting to declare and enforce the rights of a Plaintiff, or an infant, in a situation of emergency. However the present case is specifically put before us as one intended to lead to a result with general application. I consider that a case so framed and advanced seeks to bring the Court too close to the legislative function.

  320. There is a separate but related difficulty in asking the Courts to derive from the Constitution a novel duty or obligation to be imposed on parents, or on any group of citizens. It arises from the nature of the Constitution itself. This difficulty is well expressed in the judgment of Costello J. (as he then was) in P.H. (Infants) v John Murphy & Sons Ltd. [1987] IR 621. There, the Plaintiffs were infants whose father had been seriously injured due to the negligence of the Defendant. Proceedings instituted on behalf of the father were settled in a substantial sum. The infants then instituted proceedings claiming, inter alia, damages for breach of constitutional duty in respect of the loss of the non-pecuniary benefits which the father of a family bestows on his children. This cause of action was said to exist by virtue of Article 41.1.2 of the Constitution.

  321. Costello J. held that no duty of care was owed by the Defendants to the infant Plaintiffs by virtue of the Constitution. In arriving at this conclusion he held:-

    The guarantee which the State gives in Article 41.1.2 is a guarantee to protect the Family ‘in its constitution and authority’. So, if it could be shown that the Oireachtas had enacted a law which in some way failed to protect the ‘constitution’ of the Family or the ‘authority’ of the Family (as defined in the Constitution) then the State’s guarantee would have been breached. Again, the State would have failed in its obligation to protect the family if one of its officials deliberately acted so as to attack or impair the constitution or the authority of the Family and an action for damages would lie unless the impugned Act could in some way be justified under some other provision of the Constitution. But the constitution and the authority of the Family unit could be impaired, indeed destroyed, by the negligent and careless act of a State official - for example by the negligent driving of an army lorry which killed the parents of young children and which resulted in the dispersal of the children into different foster homes.

    Could it be said that the State had then broken its Article 41.1.2 guarantee? I do not think so. It must be remembered that the Court is construing a constitutional document whose primary purpose in the field of fundamental rights is to protect them from unjust laws enacted by the legislature and from arbitrary acts committed by State officials. It would require very clear words to construe the State’s constitutional obligations (as distinct from its common law obligations) as including a duty to ensure that its officials would not drive carelessly. I do not think that the words employed in Article 41 are apt to do so, and the State’s guarantee of protection does not in my judgement include a guarantee that its officials will drive State vehicles without negligence.

    It follows that the rights which are conferred by Article 41.1.2 are

    (a)

    the right to protection from legislation which attacks or impairs the Constitution or the authority of the Family and

    (b)

    the right to protection from the deliberate acts of State officials which attack or impair the Constitution or authority of the Family.

    [emphasis in original]

  322. I respectfully agree that the primary purpose of the provisions of the Constitution as to fundamental rights is to protect such rights and the people who enjoy them from unjust laws and from arbitrary State action. A person who enjoys such right is also entitled to the protection of the Court against the infringement of such right by persons other than the State: see Meskell v CIE [1973] IR 121 and Conway v Irish National Teachers Organisation [1991] 1 IR 305. But that this is quite different from deriving and enforcing the entirely novel duty proposed on ordinary citizens based on provisions whose primary purpose is “to protect them from unjust laws enacted by the Oireachtas and from arbitrary acts committed by State officials”.

    PARENT AND CHILD

  323. A family, such as the family of which the Respondents are the heads, consist of parents and children. Since a child will not himself or herself be capable of making or of acting upon any decision as to its own welfare, these decisions must necessarily be made by some person or agency on his or her behalf. In practice, this will almost invariably be either the parents or a parent on the one hand or a State or public agency of some sort on the other. The Plaintiff urges us to let a particular decision be taken by an entity of the latter sort because, it says, the decision that such a body will take has been rationally shown to be in the objective best interest of the child. But in the choice of decision maker, the Constitution plainly accords a primacy to the parent and this primacy in my view gives rise to a presumption that the welfare of the child is to be found in the family exercising its authority as such. This reflects the right both of the parents and of the children to have the family protected in its Constitution and authority.

    CONCLUSION

  324. I do not consider the presumption just described to have been rebutted or the conditions for the displacement of parental authority to have been met. I would make no Declaratory Order at the suit of the Health Board. I would decline to make the first declaration sought, apart from any other consideration, on the basis that in its own terms it is not a declaration of right, such as a court can properly make, but merely an invitation to express an opinion on a matter which is not of a legal nature. Alternatively, if the claimed declaration is to be regarded as being of a legal nature on the basis that the term “best interest” is a term of art embodying exhaustively the basis on which the Court should decide a mater affecting the welfare of a child, I would refuse to make the declaration in the form sought on the basis that it fails to reflect the presumption in favour of family autonomy which I believe to exist.

  325. I would decline to make the second declaration sought for the reasons set out earlier in this judgment.

  326. I would add that the exhaustive argument in this case has, in my opinion, provided no support whatever for the view that the Health Board could have any liability to a child to whom, through his parents, the P.K.U. test was effectively offered but declined by them on his behalf.


[1] “Over the years, the notoriety of Buck v Bell has increased as the Supreme Court has distinguished the case out of existence and evidence has surfaced indicating that Carrie Buck was very probably not disabled and that the Virginia sterilisation procedures validated in the case were extraordinarily summary in their application. Two features of the case appear to have been underemphasised in this development. One is that every member of the Taft Court, including Brandeis and Justice Harlan Fiske Stone, joined Holmes’ opinion, except Butler, who did not even offer any reasons for his dissent. The idea of eugenic reform, to be effectuated through birth control, family planning and voluntary or compulsory sterilisation, was not thought to be a repressive one in the early twentieth century. On the contrary, it was associated with a paternalistic attitude towards the ‘lower classes’, who were assumed to be ignorant of birth control methods and profligate in their relationships, thus producing children for whom they could not afford to care and perpetuating an underclass. The eradication of ‘feeble minded’ persons from the population, through sterilisation procedures that were considered humane, was regarded as an enlightened effort to produce a better society.” (G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self, 407)


Cases

G. v An Bord Uachtála (1980) IR 32; F.N. v The Minister for Education (1997) 1 IR 409; D.G. v Eastern Health Board (1998) 1 ILRM 241; The State (Quinn) v Ryan (1965) IR 70; Re E (a minor) (1990) 9 BMLR 1; Re W. (a minor) (1992) 4 All ER 648; Re O. (1993) 4 Med LR 272; Re B. (1981) 1 WLR 1421; Re C. (a child) HIV test (1999) 3 FCR 289; Southern Health Board v C.H. (1996) IR 219; Re T. (a minor) (Wardship: Medical Treatment) (1997) 1 All E.R. 906; Ryan v Attorney General (1965) IR 294; Meskill v C.I.E. (1973) IR 121; Re J.H. (1985) IR 375; Re Eve (1984) 31 DLR 1; Secretary, Department of Health & Community Services v J.W.B. & S.N.B. (1991-1992) CLR 218; L&G.M. v M.M. (Medical Law Review) (1995) 3; P.W. v A.W. (unreported); 21st April 1980; Buck v Bell (1927), 274 US 200; Re D. (a minor) (Wardship: Sterilisation) (1976) Fam. 185; Sinnott v The Minister for Education unreported; judgments delivered July 12th, 2001; G. v An Bord Uachtála (1980) IR 32; Morgan v Dillon (1724) 9 Mod. R 135; Hanrahan v Merck Sharp & Dohme [1988] I.L.R.M. 629; In re The Adoption (No. 2) Bill, 1987, [1989] I.R. 656; In re A Ward of Court (withholding medical treatment) No. 2 [1996] 2 I.R. 79; Moore v City of East Cleaveland 431 U.S. 494 (1977); Meyer v Nebraska, 262 U.S. 390 (1923); Pierce v Society of Sisters, 268 U.S. 510 (1925); Webb v Ireland [1988] I.R. 353; McGee v Attorney General [1973] I.R. 284; Crowley v Ireland [1980] IR 102; L v L [1992] 2IR 77; Russell v Fanning [1998] IR 505; P.H. (Infants) v John Murphy & Sons Ltd. [1987] IR 621; Meskell v CIE [1973] IR 121; Conway v Irish National Teachers Organisation [1991] 1 IR 305

Legislations

Constitution: Art.40.3.2

Child Care Act 1991: s.3, s.16, s.18, s.19

Health Act 1953: s.4

Courts (Supplemental Provisions) Act 1961: s.9

Authors and other references

Kelly on The Irish Constitution, 3rd Ed

Goldstein: “Medical care for the Child at risk: on State supervention of parental autonomy”, 86 Yale Law Journal 619

Professor Kennedy: “Patients, Doctors and Human Rights”

G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self


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