Supreme Court dismisses appeal; State cannot override parental refusal of PKU test without exceptional duty breach.

THE SUPREME COURT

Record No. 321/00

Keane C.J.

Denham, J.

Murphy, J.

Murray, J.

Hardiman, J.

BETWEEN

THE NORTH WESTERN HEALTH BOARD

Plaintiff/Appellant

AND

H B AND CB

Defendants/Respondents

Judgment delivered the 8th day of November, 2001, by Murray, J.

The facts and circumstances of this case as well as the arguments of the parties have been comprehensively summarised in the

judgment of the Chief Justice. I happily accept his summary of the essential elements of the case which renders it unnecessary

to repeat them in this judgment except for the purpose of placing matters in context.

In seeking a mandatory Order from the High Court, and on appeal, from this Court, requiring the Defendants to furnish their

consent to the execution of a P.K.U. test, the fundamental argument of the Plaintiffs is that the Court has an inherent

jurisdiction derived from the Constitution to grant such an order against the wishes of the parents where it is in the best

interest of the child to do so. This in turn raises issues concerning a potential conflict between the constitutional status of the

“Family” as a “moral institution” in society and the ambit of the constitutional duty of the State to defend and vindicate the

personal rights of citizens in particular children.

The issues arise from a decision by the Defendants to refuse to consent to their son undergoing a P.K.U. test. This is a simple

pinprick test where a tiny sample of blood is taken from an infant which will permit a diagnoses as to the presence or absence

of one or more metabolic conditions. Any one of these conditions will sooner or later cause either mental handicap or a serious

life threatening illness. Should the presence of any of these conditions be diagnosed they are readily susceptible to treatment

which will prevent the onset of such serious adverse consequences. The P.K.U. test is a screening process for the benefit of

the individual child. On the evidence, the risk that any given child may have one of the conditions in question is a possibility

rather than a probability, or to put it conversely, as a matter of probability the child in question does not have any of these

conditions. The Defendants say that they are in principle against any kind of invasive procedure which is how they regard the

P.K.U. test, which involves a tiny breaking of the skin for the purpose of taking a small sample of blood. On the other hand it

has been objectively established that the P.K.U. test, if it can be characterised as invasive at all, is of a minimalist nature with

no meaningful adverse risks or consequences for the infant. On the contrary in the case of a positive result it has enormous

benefits for the infant who can, with appropriate treatment or therapy be completely protected from potentially disastrous

consequences. If the result is negative it provides confidence and reassurance to the family. For these reasons the Plaintiffs

say that the Defendants should not be permitted to withhold their consent in the interest of vindicating the rights of the infant.

At one stage in the proceedings it was asserted, and no more than that, that the Defendant’s objection was based on religious

grounds. This has not been seriously pursued in the proceedings. It seems to me that the objection of the Defendants can be

properly described as a prejudice against this type of test which they choose to object to as invasive and for which objection

no rational basis has been demonstrated. Their standing as otherwise responsible caring parents has not been called in

question. They have made their own judgment in the interests of the child as they see it and, it has to be said, in the context

where there is a probability that the child does not have any of the metabolic conditions in questions.

1 If this court was exercising a parens patriae jurisdiction and stood in loco parentis to the child such as would arise if he was a

ward of Court then the Court would be free to decide whether the child should be subjected to a P.K.U. test on the basis of

what a prudent and responsible parent would do in the interest of the child. Since the Court does not exercise such a

jurisdiction in this case, this approach is not open to it.

A number of judicial decisions from other common law jurisdictions, notably England and Wales, were relied on by the parties and

in particular by the Plaintiffs. While these are illustrative how these jurisdictions have wrestled with and resolved complex

problems concerning medical treatment or medical intervention in the case of minors, often against the wishes of parents, the

Courts in those cases were exercising a jurisdiction different to that exercised by our Courts whose jurisdiction in this particular

case is governed by the constitutional provisions referred to below. They would certainly be more in point if this Court was

exercising a wardship type jurisdiction which it is not. Moreover, those cases tend to turn on their particular facts none of

which appear to me to be analogous to this case concerning as it does the refusal of the parents to submit their child to a

medical screening process.

As I have indicated above the fundamental question is a constitutional one as to whether the parents can be compelled to give

their consent to the P.K.U. test on the grounds that vindication of the rights of the child require that their refusal be overridden

by the State.

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

Article 40.3:

“(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the

personal rights of the citizen.

(2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice

done, vindicate the life, person, good name and property rights of every citizen.”

Article 41.1, under the heading “The Family”:

“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”,

“The State acknowledges that the primary and natural educator of the child is the Family and guarantees to

respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral,

intellectual, physical and social education of their children.”

Article 42.5:

“In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the

State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents,

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

The Constitution and in particular Article 41 reflects a shared value of society concerning the status of the ‘Family’ in the social

order. It declares that the State recognises the family as a natural primary and fundamental unit in society and in particular as

a distinct moral institution possessing rights superior and anterior to positive law.

Article 41.2 confers on State the duty of protecting the Family in its constitution and authority. I do not think it is necessary,

having regard to the nature of the issues in this case, to consider the philosophy which underlies the provisions of the

Constitution on the family, the terms of the Constitution being sufficiently explicit in themselves for the purposes of addressing

those issues. Suffice it to say that the Constitution accords it a special status and protection, which I might add is not wholly

unique. The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948, having

recited in its preamble its recognition “of the inherent dignity and of the equal and inalienable rights of all members of the

human family” (in its broadest sense) acknowledges the duty of Member States to secure the rights and freedoms recognised in

the Charter which includes, at Article 16 (3), “The family is the natural and fundamental group unit of society and is entitled to

protection by society and the State.” The Constitution of Germany (1949) recognises the Family as being under the special

protection of the State (Article 6) as does Article 21 of the Constitution of Greece (1975) to mention two states of European

Union.

The family also enjoys particular protection under the United States constitution. In Moore -v- City of East Cleaveland (431

U.S. 494 1977) the Supreme Court observed “This Court has long recognised that freedom of personal choice in matters of

marriage and family life is one of the liberties protected by the due process clause of the 14th amendment.” (citing, inter alia,

Meyer -v- Nebraska, 262 U.S. 390 [1923] and Pierce -v- Society of Sisters, 268 U.S. 510 [1925].

Status of the Family:

Article 41 of the Constitution in recognising the family as a moral institution possessing inalienable and imprescriptible rights,

does not purport to establish the family as an institution but recognises its inherent status as such with rights which are

“antecedent and superior to all positive law”. In doing so it reflects, as I have mentioned, a shared value of society and places

it within, what Finlay, C.J. described in Webb -v- Ireland [1988] I.R. 353 at 383, as “... the framework of the society sought to

be created and sought to be protected by the Constitution ...”.

One of the inherent objects of the Constitution is the protection of liberties. Article 41.2. in providing that “The State,

therefore, guarantees to protect the Family in its constitution and authority ...” provides a guarantee for the liberty of the

family to function as an autonomous moral institution within society and, in the context of this case, protects its authority from

being compromised in a manner which would arbitrarily undermine the liberty so guaranteed.

In Meyer -v- Nebraska and Pierce -v- Society of Sisters (cited above) the Supreme Court of the United States held that the

privacy and autonomy of the family are part of the “liberty” protected by the 14th amendment to the Constitution of the United

States. In the Pierce decision (which concerned State legislation requiring all children to be sent to public schools) the Supreme

Court held “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of

the State to standardise its children by forcing them to accept instructions from public teachers only. The child is not the

mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to

recognise and prepare him for additional obligations”.

I refer to this citation merely as illustrative of the fact that the status and autonomy of the family is one which in a democratic

constitutional order may be the subject of guarantees protecting its liberty and autonomy as a fundamental unit in society. The

terms of Article 41 of the Constitution are more explicit in that regard than the Constitution of the United States. As Walsh, J.

stated in McGee -v- Attorney General [1973] I.R. 284 at 310 “the individual has natural and human rights over which the State

has no authority; and the family as the natural primary and fundamental unit group of society, has rights as such which the

State cannot control.”

I think it is well established in our case law that the authority and autonomy explicitly recognised by the Constitution as residing

in the family as an institution in our society means that the parents of children have primary responsibility for the upbringing and

welfare generally of their children. When exercising their authority in that regard they take precedence over the State and its

institutions. In this respect I agree with the observation of the Chief Justice that the family is endowed with an authority which

the Constitution recognises as being superior even to the authority of the State itself.

Rights of Children:

That is not to say that the authority of parents is absolute or that they are immune from State intervention in all circumstances

when exercising that authority. Walsh J., in the passage immediately following the citation from his judgment above in McGee -

v- Attorney General , stated “However, at the same time it is true, as the Constitution acknowledges and claims, that the

State is the guardian of the common good and that the individual as a member of society, and the family, as a unit of society,

have duties and obligations to consider and respect the common good of the society ... The power of the State to act for the

protection of common good or to decide what are the exigencies of the common good is not one which is peculiarly reserved

for the legislative organ of government, in that the decision of the legislative organ is not absolute and is subject to and

capable of been reviewed by the Courts. In concrete terms that means that the legislature is not free to encroach

unjustifiably upon the fundamental rights of individuals or of the family in the name of the common good, or by act or omission

to abandon or neglect the common good, or the protection or enforcements of the rights of individual citizens”.

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

The Child’s Rights:

“The child also has natural rights. Normally, these would be safe under the care and protection of its mother.

Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity

of working and of realising is or her full personality and dignity as a human being. These rights of the child (and

others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases

the State, under the provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the

common good, to provide for a child born into a family where the parents fail in their duty towards the child for

physical or moral reasons.

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

“Article 42. s.5 of the Constitution should not, in the view of the Court be construed as being confined, in its reference

to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases

envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to

supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also

parental duty to cater for the other personal rights of the child.

Article 42, s.5, does not in any way mean that the children whose parents have failed in their duty to them become the

children of the State or that they are to be disposed of as such. Article 42, s.5, (cited above) permits the State, as

guardian of the common good, to endeavour to supply the place of the parent where the parents for physical ormoral

reasons fail in their duty towards their children.”

Conclusion:

A general conclusion can be drawn from the foregoing, namely that the family as a moral institution enjoys certain liberties

under the Constitution which protect it from undue interference by the State whereas the State may intervene in exceptional

circumstances in the interest of the common good or where the parents have failed for physical or moral reasons in their duty

towards their children. I do not see anything novel in these conclusions. These matters have been well established in our case

law interpreting the relevant provisions of the Constitution. In Ryan-v-The Attorney General I.R. 294 the constitutionality of the

Act of the Oireachtas providing for the fluoridation of the public water supply was challenged. The Act was challenged inter alia

on the grounds that it offended against the rights of parents who objected to their children being subjected to such a regime.

That Act represented a policy decision made by the Oireachtas in the exercise of its constitutional functions in the interest of

public health. This was the essential context in which that case was decided. In acknowledging that constitutional rights may

be regulated by the Oireachtas when the common good requires it Kenny, J. in the High Court judgment, (at p.312) stated

“When dealing with controversial social, economic and medical matters of which it is notorious views change from generation

to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its

decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there was no

reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and

the interference with the personal rights of the citizen. Moreover, the presumption that every Act of the Oireachtas is

constitutional until the contrary is clearly established applies with particular force to this type of legislation” While the

Oireachtas, in the exercise of its constitutional functions, may in certain circumstances regulate or limit constitutional rights on

concrete policy grounds with a view to reconciling them with the common good, this is not of course what has occurred here

and not the issue which arises.

What is in issue here is whether the parents have acted in such a manner that exceptional circumstances arise by reason of a

breach of duty on their part which would justify the State overriding their personal decision with regard to their child in this

case. If the State had a duty or was entitled to override any decision of parents because it concluded, established or it was

generally considered that that decision was not objectively the best decision in the interest of the child it would involve the

State, and ultimately the Courts, in a sort of micro-management of the family. Parents with unorthodox or unpopular views or

lifestyles with a consequential influence on their children might for that reason alone find themselves subject to intervention by

the State or by one of the agencies of the State. Similar consequence could flow where a parental decision was simply

considered unwise. That would give the State a general power of intervention and would risk introducing a method of social

control in which the State or its agencies would be substituted for the family. That would be a infringement of liberties

guaranteed to the family. Decisions which are sometimes taken by parents concerning their children may be a source of

discomfort or even distress to the rational and objective bystander, but it seems to me that there must be something

exceptional arising from a failure of duty, as stated by this Court in The Adoption (No. 2) Bill 1987 (cited above), before the

State can intervene in the interest of the individual child.

It would be impossible and undesirable to seek to define in one neat rule or formula all the circumstances in which the State

might intervene in the interests of the child against the express wishes of the parent. It seems however to me that there must

be some immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically

morally or socially, deriving from an exceptional dereliction of duty on the part of parents to justify such an intervention.

In the present case the parents have refused to allow the child to undergo a medical screening test. It is a test which neither

the Oireachtas nor the Executive have considered appropriate to make compulsory in the interests of the common good. The

parents have made their own judgment. It is a judgement for which they have not been able to articulate a rational basis that

would satisfy the objective observer as to its wisdom. From an objective point of view it is manifestly unwise. However it is a

judgement that has been exercised on the basis of first of all their objection in principle to what they regard as an invasive

procedure and secondly in the context of a child that is at least ostensibly healthy and, on the evidence, is, as a matter of

probability, free from any of the conditions which the test is designed to disclose. Unwise and disturbing the decision as it may

be I am satisfied that it is a decision which they had the liberty to take and that it is not a case in which there has been such

an abdication of responsibility, moral or otherwise as would justify the State’s view being substituted for that of the parents.

I would therefore dismiss the appeal.