Supreme Court allows parents to be ordered to permit PKU testing on infant to protect child's health.

THE SUPREME COURT

Keane C.J.

Denham J.

Murphy J.

Murray J.

Hardiman J.

321/00

BETWEEN:

THE NORTH WESTERN HEALTH BOARD

Plaintiff/Appellant

and

H.W. AND C.W.

Defendants/Respondents

JUDGMENT delivered on the 8th day of November, 2001 by Keane C.J.

Introduction

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 PKU 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.

Those facts can be stated as follows. A test exists, known as the PKU 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.

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.

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.

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.

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.”

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.”

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.”

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.

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.

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.

On the 5th May 2000, the plaintiffs wrote to the defendants stating that they had been instructed that they had refused to

have the PKU 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 PKU test carried out and in this way to have the legal issue determined by the superior courts

once and for all.”

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

“As you know, the PKU 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 PKU 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 PKU 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.”

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 PKU test be carried out on him, and that the refusal of the defendants to consent to the carrying out of a PKU

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 PKU 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 PKU 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 PKU test.

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 PKU test has already

been summarised in this judgment.

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 PKU 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 PKU test and all immunisations for his son.”

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 PKU 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 PKU 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.”

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.”

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.

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.

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.”

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.

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.

9Q. 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.

10Q. 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.”

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.

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.

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.

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.”

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.

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.”

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.

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.

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”.

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

“93Q. 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.

94Q. So the condition is at a more advanced stage when it is picked up in the urine?

A. That’s right.

95. With the consequences you have already described for the treatment?

A. That’s correct.

96Q. 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.”

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

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.”

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.”

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 PKU 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.”

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.”

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.”

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 40.3.2º. 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.

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

this court.

Submissions on behalf of the parties

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.

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.

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.

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.

As to the fact that the Oireachtas has not enacted legislation providing that the PKU 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.

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.

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 PKU 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.

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.

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 PKU 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.

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.

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.

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 and 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 and

Community Services .v. J.W.B. and S.N.B. (Marion’s case) (1991 - 1992) CLR 218 and L and 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

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.”

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.”

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.”

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.

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.”

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.

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.

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

“1º 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.

2º 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.”

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.

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.

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.

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.

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.

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’.”

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).

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).”

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.”

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).

Article 41.1 was further considered by this court in In Re Article 26 of the Constitution and 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.”

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.”

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.

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.”

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.

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.

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.

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.

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.

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 41.1.2º 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.”

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.”

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.

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.

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 “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).

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.

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.

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.”

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.

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.

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.”

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.”

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.”

The third of these cases is the decision of the High Court of Australia in Secondary, Department of Health and Community

Services .v. J. W. B. and 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.”

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.”

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.

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.

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.

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.

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.

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.”

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.

The case of 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.

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.

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.”

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.

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.”

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

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.

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.

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.”

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

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]

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.

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.

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.”

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.

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.

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 and Others (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

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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 PKU 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.