THE HIGH COURT
JUDICIAL REVIEW
RECORD NO: 474/2005 JR
BETWEEN:
LEGAL AID BOARD
Applicant
AND
DISTRICT JUDGE PATRICK BRADY
Respondent
AND
THE NORTHERN AREA HEALTH BOARD, MG AND EO’S,
Notice Parties
THE HIGH COURT
RECORD NO: /2005 SS
IN THE MATTER OF SECTION 52 OF THE SUMMARY JURISDICTION ACT, 1857
AS EXTENDED BY SECTION, 62(1) OF THE COURTS SUPPLEMENTAL)
PROVISIONS ACT, 1961
AND
IN THE MATTER OF KG (A CHILD)
HEALTH SERVICES EXECUTIVE NORTHERN AREA
Applicant
AND
MG
Respondent
AND
LEGAL AID BOARD, THE HUMAN RIGHTS COMMISSION, IRELAND AND THE
ATTORNEY GENERAL
Notice Parties
___________________
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Preliminary submissions on behalf of the Human Rights Commission
The Human Rights Commission (hereinafter “ the Commission” ) submits the following outline submissions in relation to certain issues arising in the proceedings before this
Honourable Court.
The Commission’s functions are set out in the Human Rights Commission Act, 2000 as amended. Section 8(h) empowers the Commission to apply to this Honourable Court and to the Supreme Court to be joined as amicus curiae in proceedings before the court that involve or are concerned with the human rights of any person and to appear as such on foot of an order of the Court. The term
“human rights” is defined in the Act of
2000 as meaning;
“(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution, and
(b) the rights, liberties or freedoms conferred on or guaranteed to, persons by any agreement, treaty or convention to which the State is a party.”
The Commission is of the view that the proceedings herein raise certain fundamental issues pertaining to the protection of human rights and thus seeks to address the Court on issues pertaining to such protection. The right of effective access to the courts and the vindication of rights arising from the parent/child relationship pursuant to Article 40.3 of the Constitution as well as those rights arising by virtue of, in particular, Articles 6 and
8 of the European Convention on Human Rights which guarantee a fair trial and respect for private and family life, respectively, arise for consideration. Aspects of the UN
Convention on the Rights of the Child are also of relevance. The nature of the role, if any to be played by a Guardian ad Litem for an adult lacking legal capacity falls to be assessed in the light of the constitutional guarantees pertaining to self-determination, autonomy and dignity of the person.
In essence, the proceedings herein raise for consideration the question of the power of the District Court to appoint a Guardian ad Litem for an adult who is lacking in capacity; thereafter, if such a power does exist, issues must be addressed regarding the manner in which the costs and expenses of such a Guardian ad Litem may be met and the role, if any, the District Court has in directing payment.
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In addition to addressing the human rights issues to which the proceedings give rise, the Commission proposes to discuss the preliminary matter of the right, if any, of the
District Court to appoint a Guardian ad Litem for an adult lacking capacity. In addressing this preliminary issue in these outline Submissions, however, it has proven necessary to consider to some extent the substantive issues which arise regarding the right of such an adult to a Guardian ad Litem and the payment of such a person. The
Commission will develop these substantive submissions in due course.
For the purpose of clarit y, it is first of all necessary to set out in brief the Commission’s view regarding the role and function of a Guardian ad Litem acting for an adult lacking legal capacity. The Commission will further develop upon these following in its later submissions.
(i) The Role and Function of a Guardian ad Litem acting for an adult without legal capacity
The legal representatives acting on behalf of MG have informed the District Court that, by reason of her psychological condition, it has proven impossible to take instructions.
In such circumstances, the task of a Guardian ad Litem acting on behalf of an adult litigant is to bring his or her skills to bear in order to determine the wishes and instructions of the adult party and to relay same to the Court. Thus, the Guardian ad
Litem must advocate on behalf of the adult in a manner which respects the dignity of the adult and which best vindicates the party’s right of effective access to the Court. It is submitted that the constitutional rights to self-determination and autonomy 1 , coupled with the guarantee of equality before the law, require that the role of the Guardian ad
Litem acting on behalf of an adult litigant, be limited to the above. Thus, it is argued that the role of a Guardian ad Litem acting on behalf of an adult is more limited than the dual role played normally by a Guardian ad Litem acting on behalf of a child who must both relay the wishes of the child, having due regard to the child’s age and understanding, to the court and also inform the court of his or her views regarding the best interests of the child.
1 See , for example, the judgment of Denham J in In the matter of a Ward of Court (withholding medical treatment) (No.2) [1996] 2 I.R. 79
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(ii) Does the District Court have the power to appoint a Guardian ad Litem for
MG?
The District Court, as a court of local and limited jurisdiction, does not enjoy any inherent jurisdiction and all powers enjoyed by it must be expressly conferred upon it by statute. A number of possible sources have been identified by the parties for the power of a District Judge to appoint a Guardian ad Litem for an adult party to proceedings before the court, where the adult in question is lacking in legal capacity. Thus, Rule 7(8) of the District Court provides that;
“A person of unsound mind may sue by his or her committee or next friend and may defend any proceedings by his or her committee or Guardian ad
Litem and the provisions of this Order, with any necessary modifications, shall apply in appropriate cases and those provisions shall be construed accordingly.”
There does not, however, appear to be any enabling legislative provision conferring upon a District Judge a corresponding power to appoint such a Guardian ad Litem . It must therefore be asked whether it is in fact necessary for the court to take such a step or, in the alternative, whether once “unsoundness of mind” is established, a party may defend with the assistance of a Guardian ad Litem without the need for a Court Order.
If, however, an Order of Court is required, the provisions of Section 47 of the Child Care
Act, 1991 may be of assistance. The section provides that;
“Where a child is in the care of [the Health Service Executive], the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thin ks proper and may vary or discharge any such direction or order.”
A fundamental premise of the Act of 1991 is that the welfare of the child is best served if he or she is with his or her parents 2 ; if same cannot be achieved, an Order of the
District Court altering that relationship may be secured. It is therefore entirely consistent
2 Section 3(2) of the Act provides that in the performance of its function to promote the welfare of children in its area who are not receiving adequate care and protection, the
Health Service Executive shall have regard, inter alia , to the principle that it is generally in the best interests of a child to be brought up in his own family.
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with that approach that the welfare of the child is promoted if his or her parents have an opportunity to argue in an effective manner that their child ought to remain in their care.
To that extent, the terms of Section 47 may embrace the appointment of a Guardian ad
Litem for a parent lacking legal capacity.
The courts have made it clear on a number of occasions that the above term is to be afforded a generous and broad interpretation: The Eastern Health Board v District
Judge McDonnell [1999] 1 I.R. 175 and Western Health Board v K.M. [2002]2 I.R.
493. In the latter case, McGuinness J, delivering judgment for the Supreme Court noted that the issue before the Court in that case was the proper construction of Section
47 of the Act of 1991 and added that it was accepted by both parties that the section must be viewed within the context of the Act as a whole.
3 McGuinness J. continued that;
“There can be no doubt that [the Act of 1991] is a remedial social statute, and was seen to be such by all who were affected by its provisions. Its social and remedial importance was accepted by all, including this court and more particularly the District Cour[t]…. I would therefore accept the submission of the respondent that the construction of the Act of 1991, as a whole, should be approached in a purposive manner and that the Ac[t] should be construed as widely and as liberally as can fairly be done. This does not, of course, imply that
Section 47 can be looked at apart from its context in the general framework of the Act, or that the widely drawn terms of the section means that the District
Court is simply at large in the orders it may make pursuant to the section.
4 ”
Thus, it may be argued that the District Court does indeed enjoy a power under this broad section to appoint a Guardian ad Litem for a parent found to be lacking in capacity. It would appear from the Submissions of the Legal Aid Board that the application to the District Court for the appointment of Guardian ad Litem was made pursuant to this Section. It is clear that the section only applies in the context of a child in the care of the Health Service Executive. KG is the subject of an interim care order which has been renewed on a number of occasions. Nothing on the face of Section 47 suggests that that term precludes children the subject of such an interim care order.
Indeed, Section 17 of the Act of 1991 which pertains to the power of the District Court to make such an interim care order, provides that once an order of that nature is made, a
3 At p.502.
4 At p.510.
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child shall be “placed or maintained in the care of the [Health Service Executive]” for the duration of the order 5 . There is no significant difference between the terminology employed in that section and that found in Section 18 of the Act of 1991, which pertains to full care orders; the latter provides that a care order “shall commit the child to the care of the [Health Service Executive]” for as long as he is a child or for such shorter duration as the court may determine. The term “in the care of the [Health Service Executive]” is employed at various points in the Act to embrace children the subject of interim care orders as well as those in respect of whom full care orders have been made 6 .
While,
Section 17(4) of the Act of 1991 does confer upon the District Court the power to make directions in relation to certain specified matters where an interim care order is in force and Section 18(6) provides that a court may between the making of an application for a care order and the making of the order, give directions in relation to the care and custody of the child in question, neither section precludes the application of Section 47 as an additional protection for children in interim care. Indeed, given that children can, in reality, remain in the interim care of the Health Service Executive for a considerable period of time, it is appropriate that the District Court should enjoy the extensive supervisory power afforded to it in the context of a full care order.
It is therefore clearly arguable that Section 47 does embrace the circumstances at issue herein. In the absence of certainty on the face of the legislation, it is appropriate to have regard to the purpose of the legislation 7 and the constitutional provisions underpinning same. As the Supreme Court noted in Western Health Board v KM, the Act of 1991 represents an important piece of remedial social legislation. It is clear that the Act seeks to ensure protection for, and promotion of, the welfare of the child in question and, as noted previously, starts from the premise that the best interests of the child are best served by the child remaining with his or her parents if same is possible 8 . Such a statutory position mirrors the constitutional position regarding the welfare of the child and its relationship with its parents 9 .
5 Section 17(2)
6 In tha t regard, note that Part VI of the Act is entitled “Children in the Care of Health Boards”.
That Part regulates matters such as the provision of accommodation, maintenance and access to children in care. Such matters are clearly applicable both to children in interim care and to those in respect of whom a full care order has been made. Section 47 is found in Part VI of the Act.
7 Section 5 of the Interpretation Act, 2005.
8 Section 3(2), set out at Footnote 2.
9 Infra
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(iii) Relevant Constitutional Issues
Indeed, it is arguable that the Constitution mandates the above interpretation of Section
47 of the Act of 1991, as any other interpretation of the provision may result in a failure to vindicate the right of MG to have effective access to the court for the purpose of vindicating her constitutional rights. MG enjoys a constitutionally-protected right to provide the care for, and to have custody of, her daughter 10 , KG who, in turn, has a corresponding right to care and company of her mother 11 . In order to vindicate these rights, attaching to mother and daughter alike, MG must have access to the District
Court in order to resist the application of the Northern Area Health Board pursuant to the Child Care Act, 1991. She must, like all parents, have every reasonable opportunity to present her case against the making of a care order, having particular regard to the fact that such an order has the effect of transferring parental responsibilities to the
Health Service Executive and displacing the parent’s role in a most fundamental manner. Such procedural rights can not be diminished by virtue of MG’s lack of legal capacity. In view of her psychiatric illness, there is no reality to the exercise by MG of that right unless she has the benefit of the assistance of a Guardian ad Litem who shall endeavour to present her wishes to the District Court.
(iv) The European Court of Human Rights Act, 2003
One of the core obligations of the 2003 Act is contained in s.2 which provides “in interpreting and applying any statutory provision or rule of law a Court shall, insofar as possible, subject to the rules of law relating to such interpretation and application, do so in a matter compatible with the State’s obligations under the Convention provisions”. Sub-section 2 provides, “This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter”.
10 The State (Nicholaou) v An Bord Uchtala [1966] IR 567; G v An Bord Uchtala [1980] IR 32;
O ’Flaherty J in O’C v Sacred Heart Adoption Society [1996] 1 ILRM 297.
11 While MG is the only Respondent to the proceedings before the District Court, it is not clear whether the family embracing MG and KG is a marital one, thus bringing the provisions of Article
41 of the Constitution into play. If it is, the presumption that the best interests of the child are best served within the confines of that marital unit must be considered. The Commission is anxious, however, to promote the provision of similar levels of protection to non-marital and marital families alike.
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Section 4 provides that judicial notice shall be taken of the Convention provisions and of any decisions and advisory opinions or judgements of the European Court of
Human Rights and provides that a Court shall, when interpreting and applying the
Convention provisions, take due account of the principles laid down by such decisions, etc.
Whilst Articles 6 and 8 of the Convention raise the issues of most substantive concern herein, the guarantee of an effective remedy set out in Article 13 and the non-discrimination provision, Article 14, must also be borne in mind.
Thus, Article 8 provides as follows:-
“1. Everyone has the right to respect for his private and family life, his home and correspondence.
2. There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime for the protection of health or morals, or for the protection of the rights and freedoms of others.”
According to the well-established case-law of the European Court of Human Rights,
“the mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life” and domestic measures hindering such enjoyment amount to an interference with the rights protected by Article 8; see, for example, W. v United Kindgom (1988) 10 E.H.R.R. 95. Thus, the Court has held that certain procedural safeguards are implicit in Article 8 in order to ensure respect for family life and has concluded that the entire decision-making process, administrative and judicial, must be fair and afford due respect to the interests protected by Article 8. In W v United Kingdom, supra, the Court stated that what falls to be considered is whether;
“the parents have been involved in the decision-making process to a degree sufficient to provide them with a requisite protection of their interests.” 12
12 At paragraph 64.
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The European Court of Human Rights has thus recognised that procedural fairness requires the opportunity to make submissions 13 and demands that parents shall have access to relevant documentation 14 in order to ensure effective representation in decisions affecting their children.
E qually, a parent’s right to have contact with, and to provide care for, a child constitutes a “civil right” for the purposes of Article 6 of the European Convention on
Human Rights. That article guarantees a right to a fair trial and states that;
“in the determination of the civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Thus, in P. C and S v United Kingdom 15 , the Court held that the continuation of the hearing of care order and freeing for adoption applications when the applicant parents were unrepresented constituted a violation of Articles 6 and 8 of the Convention.
Likewise, in Keegan v Ireland 16 the inability of a natural father to challenge before a court the adoption of his child was found to constitute a violation of Article 6.
17 Unless
MG is afforded the benefit of a Guardian ad Litem she too will be denied the opportunity to appear before the District Court in anything but form.
(v) The United Nations Convention on the Rights of the Child
The Commission also refers to the United Nations Convention on the Rights of the
Child 18 , which promotes a rights-focussed approach to all issues pertaining to the lives of children. Thus, it seeks to ensure, for example, that a child who is capable of forming his or her own views shall have the right to express those views in all matters affecting the child 19 and provides that the best interests of the child shall be a primary
13 Boyle v United Kingdom, Feb 9 1993, Series A, No. 282-B.
14 McMichael v United Kingdom (1995) 20 EHRR 205.
15 (2002) 35 EHRR 31
16 [1994] 18 EHRR 342
17 A rule denying legal standing to a father in proceedings which involved the taking into care of his child and of no prospect of applying for contact, the case was settled after being declared admissible; 11468/85, October 15 1986, 50 D.R. 199.
18 Ratified by Ireland in 1992.
19 Article 12. The weight which shall be given to such views shall be determined by reference to the age and maturity of the child.
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consideration in all actions concerning children 20 . Alongside this promotion of individual rights, however, the Convention seeks to protect the interests of the family which it recognises as the fundamental group of society which should be afforded the necessary protection and assistance so that it can fully assume is responsibilities within the community 21 . Most importantly, it provides at Article 9(2) that;
“In any proceedings [which may entail the separation of a child from his or her parents against his or her will], all interested parties shall be given an opportunity to participate in the proceedings and to make their views known.”
Reference is made to the judgment of Finlay-Geoghegan J in Nwole v Minister for
Justice 22 wherein the Court concluded that those provisions of the Refugee Act, 1996 which pertained to children must be construed, and its operation applied by the authorities, in accordance with the above Convention.
Thus, it is submitted all of the above instruments support the entitlement of MG to have the assistance of a Guardian ad Litem in the proceedings currently before the District
Court and that same should be considered when interpreting Section 47 of the Act of
1991 and, more particularly, the power of a District Judge to appoint a Guardian ad
Litem pursuant to that Section for an adult parent lacking in legal capacity.
(vi) Ensuring Effective Access to the District Court in order to vindicate the above rights
A Guardian ad Litem should ensure the vindication of the right to effective access 23 to the courts, a right considered in the following cases which address the issue of civil legal aid. The courts have clearly recognised therein that the rights of the applicants in question could not be secured without both the assistance of a lawyer and the provision of legal aid to meet the latter’s costs. It is submitted that the needs of an adult lacking in legal capacity in cases such as those arising pursuant to the Act of 1991 must be of
20 Article 3
21 Preamble
22 Unreported, High Court, Finlay-Geoghegan J, 31 st October 2003.
23 In the context of the ECHR, the European Court of Human Rights has repeatedly stated that the rights protected by the Convention are practical and effective, not theoretical or illusory; in Airey, infra, the Court noted that this was particularly applicable to the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
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equal if not greater magnitude and may only be met by the provision of a Guardian ad
Litem who shall endeavour to determine the wishes of the adult in question and by the payment in appropriate cases of the cost of such a Guardian. As MG is in receipt of legal aid, it would appear that there is no reality to the vindication of her right to a
Guardian ad Litem unless the costs of such a Guardian ad Litem are met.
As the European Court of Human Rights found in Airey v Ireland 24 , both the Article
6(1) and Article 8 rights of the Applicant, a victim of domestic violence, had been violated because of the absence of legal aid enabling her to access the courts and institute appropriate proceedings.
In that case, it was the combination of the applicant’s circumstances, the nature of the case, a complex procedure and the absence of any legal aid that led to the breach of Article 6. Where such a breach arises, Article 1 of the
Convention, which provides that each Contracting Party “shall secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention” may impose positive obligations upon the State, such as a duty to enact legislation designed to ensure the effective exercise of the right in question.
A number of Irish decisions have invoked the constitutional requirements of fairness and justice in support of the assertion that a party to civil proceedings may have a right to legal aid, where the proceedings shall affect fundamental interests of the party concerned. Thus in Stevenson v Landy and others 25 , Lardner J concluded that the Applicant who sought to defend wardship proceedings instituted by the then
Eastern Health Board was entitled to legal aid in view of the gravity of the proceedings before the Court. The Order sought by the Health Service Executive herein is of equal if not greater import as far as the interference with MG’s constitutional right to provide care for and to have custody of her daughter and those of her daughter to receive her mother’s care and to have her mother’s company is concerned.
The approach of Lardner J was endorsed by Kelly J in the recent O’Donoghue v
The Legal Aid Board and others 26 .
Although that decision is based upon the constitutional requirements of access to the courts and fair procedures, Kelly J. noted
24 2 EHRR 305.
25 Unreported, High Court, Lardner J, 10 February 1993
26 [2004] IIEHC 413
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that his findings were entirely in conformity with that of the European Court of Human
Rights in Airey 27 .
Thus, it is submitted that, in order to vindicate the rights of MG pursuant to the
Constitution and the Convention in a practical and effective manner, the State must meet the cost of providing a Guardian ad Litem in circumstances such as those at issue herein.
Nuala Egan BL
27 The recent judgment of the European Court of Human Rights in Steel and Morris v United
Kingdom (Application 68416/01, February 15 2001) is also of relevance in this regard.
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