In the matter of Wards of Court and in the matter of Francis Dolan.
Practice and procedure - Wards of Court - Appeal from order directing that issue as to whether or not appellant of unsound mind and incapable of managing his person and property be tried - Whether other avenues open in relation to the protection of appellant's monies - Whether preliminary issue can be tried - Whether wards of court jurisdiction vested in High Court or in President of High Court personally - Lunacy Regulation (Ireland) Act 1871 (34 & 35 Vic. c.22) ss 11, 12- Government of Ireland Act 1920 (10 & 11 Geo.5 c.67) - Courts of Justice Act 1924 (No. 10) s19 - Courts of Justice Act 1936 (No. 48) s9; Courts (Supplemental Provisions) Act 1961 (No. 39) s9; Rules of the Superior Courts 1986, Order 67- Bunreacht na hEireann - The European Convention on Human Rights and Fundamental Freedoms.
The Supreme Court (Mr Justice Geoghegan, Mr Justice Fennelly, Mr Justice Kearns); judgment of Mr Justice Geoghegan delivered on July 4th, 2007.
Section 9 of the 1961 Act expressly vested the jurisdiction in lunacy matters in the High Court. The significance of the jurisdiction being vested in the High Court rather than the President of the High Court personally means that wardship proceedings are High Court proceedings and all the normal procedural devices for litigating issues are available. There is no legal impediment therefore to an issue being tried, in advance of the inquiry by judge and jury, as to whether it was open to the President or whatever judge might be delegated by him to protect the monies recovered by the appellant by means other than making him a ward of court and if so whether such a course of action would be desirable in the case.
The Supreme Court so held in allowing the appeal.
James Salafia, SC, James O'Reilly, SC, and Aillil O'Reilly, BL, for the appellant; Donal O'Donnell, SC, and Imogen McGrath, BL, for the respondent.
Mr Justice Geoghegan commenced his judgment by stating the matter was an appeal from an order of the High Court, Wards of Court (Finnegan P.), against an order that the issue of whether or not the appellant is of unsound mind and incapable of managing his person or property be tried without pleadings. The background of the case was then set out. The appellant through his mother and next friend instituted medical negligence proceedings alleging that the cerebral palsy he was diagnosed with sometime after birth resulted from the negligence of his doctors. The matter came before the High Court in October, 2001, and there was an approved settlement of £3 million paid into court for the benefit of the appellant. An order was made allowing some disbursements with the balance to be retained in court pending an application to the President of the High Court exercising his Wards of Court jurisdiction. From the start the parents took strong objection to the appellant being made a ward of court. They and their family doctor were of the view that the appellant could not properly be described as "of unsound mind" as although incapable of managing his financial affairs he was not suffering from a mental illness. The parents viewed with horror the terminology in the Act of 1871 and the General Orders in Lunacy and were not appeased by an explanation that it was merely a procedural matter. Most importantly they objected to the person and property of the appellant being under the control of the President of the High Court instead of their control and there was extensive correspondence with the wards of court office. In early 2002 an informal application was made to the former President of the High Court on behalf of the appellant for permission to set up a trust to manage the monies received in the settlement, with the parents of the appellant as initial trustees together with some non-family trustees. The proposal also involved professional money managers to oversee the investment of the funds. The former President took the view that he had no jurisdiction to entertain it and stated steps should be taken to make the appellant a ward of court. The cash funds were placed under the control of the High Court through the Accountant General of the High Court rather than the Registrar of Wards of Court (hereinafter referred to as the registrar) and were on deposit with Nationwide Building Society.
The appellant's father averred in an affidavit before the court, though sworn in separate proceedings, that after the refusal by the President to authorise the trust he researched the Wards of Court jurisdiction and took legal advice which took time. In early 2003 he approached the registrar and put forward the family's view that it was not in the appellant's best interest that he be made a ward of court. The registrar undertook to raise the matter with the President. There followed a letter from him dated May 30th, 2003, enclosing an order of the President dated May 28th, 2003, directing that one of the court's medical visitors visit the appellant and file a report under ss. 11 and 12 of the 1871 Act. The appellant's father's averred surprise at receiving same as he had not received notice of any hearing nor was he afforded the opportunity to make representation directly to the court. He believed and was advised that the order was invalid as it failed to show jurisdiction and in any event should have been made if at all in open court in his presence or that of his legal advisor. Solicitors for the parents wrote to the Registrar on February 18th, 2004, stating their clients' concerns. The family had provided full time care for the appellant for 21 years and did not wish to have his affairs dealt with under the 1871 Act and the further legislation providing for the jurisdiction currently administered by the President of the High Court and the Office of the Wards of Court. They were concerned with the badge of lunacy and insanity which the 1871 Act contains within its procedures and that the legislation failed to have adequate regard for the constitutional entitlements and rights of the appellant and his family and threatened proceedings.
Mr Justice Geoghegan stated the threatened proceedings in which the above affidavit was sworn were a separate legal action by the appellant and his parents against the Registrar of the Wards of Court, Ireland and the Attorney General challenging the constitutionality of the wards of court system in so far as it related to the appellant. Some of the reliefs related to alleged rights under the Constitution and or the European Convention on Human Rights, others were challenges to the constitutionality of some of the provisions of the 1871 Act. After a statement of claim was delivered an unsuccessful claim for interlocutory relief was brought seeking to restrain the medical visitor from visiting the home of the plaintiffs and to restrain the use of any guards for the purpose of such visitation. Though the motion was unsuccessful Kelly J stated no criticism was or could be made of the way the appellant was being looked after by his family as a member of that family unit. Kelly J took the view, with which Mr. Justice Geoghegan concurred, that there was a preliminary issue to be decided namely: was the order made by the President in exercise of a judicial or merely an administrative function? Mr Justice Kelly concluded, rightly according to Mr Justice Geoghegan, that the function was judicial, it being a necessary condition precedent to the hearing of an application for admission to wardship. Whilst that determined the matter, Mr Justice Kelly had gone on to express a view on the merits in case he was wrong on the preliminary point. Mr Justice Kelly stated that counsel for the registrar on instructions had stated in open court that the plaintiffs need have no fear of a wardship order being made without them being provided with a full hearing before the President at which time they could both call evidence and make submissions and have a judicial hearing on the topic. Mr Justice Kelly pointed out that such a hearing is not ad hoc but is expressly provided for in Order 67, rule 6 of the Rules of the Superior Courts. None of this assuaged the plaintiffs' concerns. They considered that for all practical purposes a decision had already been made to take the appellant into wardship. Emphasis was placed on a letter of January 7th, 2004, from the registrar to the plaintiff's solicitors that referred to "Once the plaintiff is taken into wardship . . ." Mr Justice Kelly had said that the letter must be read in context, and was in order apart from the inappropriate assumption that the plaintiff would be taken into wardship. Mr Justice Kelly pointed that the letter was written by the registrar not the judge and that it had to be read "in the light of the assurances given in open court as to the hearing which will now take place". Mr Justice Kelly said that wardship is a discretionary jurisdiction and that it is open to the President to conclude that wardship is not necessary in any given circumstances for the protection of the property or the person of the respondent. Mr Justice Kelly quoted from the case of Eastern Health Board v MK 2 IR 99 at 111 that "Wardship proceedings must be fair and in accordance with constitutional justice . . . Due process must be observed . . . Fundamental principles such as those In re Haughey IR 217 applies". Mr Justice Kelly expressed his confidence that the President would comply with those constitutionally mandated norms in deciding whether or not to take the appellant into wardship. Mr. Justice Kelly stated that even if he was wrong on the jurisdictional point he was of the view that injuncting the Medical Visitor would be wrong. The expression "person of unsound mind" had a special meaning, not the perceived offensive meaning attributed to it by the parents. It meant no more than the appellant was incapable of managing his affairs.
Mr. Justice Geoghegan stated that the appellant's parents were still not consoled. The parents had a rooted objection to any inquiry as to whether their child is a person of unsound mind partly because of nomenclature but also because they consider the issue as to control of the monies had already been pre-determined. What they wanted was a determination by the High Court in advance of any consideration of the wardship issue as to whether an appropriate trust or some other arrangement could be arrived at which would allow them reasonable control of their child and that they be trusted within reason to decide how to apply the monies for his benefit. Mr. Justice Geoghegan stated that obviously there would have to be some supervision by the court, the contention is that it need not entail wardship.
Mr Justice Geoghegan stated that the constitutional action appeared to be stalled and no reasonable steps had been taken to expedite it and in those circumstances the President would have been right to have no regard to it in the decisions which he made. However, Mr. Justice Geoghegan said that the President had been obliged to have regard to the two notices of objection filed on October 8th, 2004, one on behalf of the applicant and one on behalf of the parents which were quite detailed raising some major constitutional issues that overlap with the constitutional action. The issue raised in them was whether, having regard to the nature of the parents and the family circumstances, wardship would be necessary for the protection of the monies. The former President of the High Court informally in open court and again indirectly through correspondence from the Registrar made clear his view that if the appellant was unable to look after his own property there was no jurisdiction to do anything else other than bring him into wardship, in particular there was no jurisdiction to create a trust. Mr. Justice Geoghegan stated that Finnegan P showed particular and understandable concern that the monies were on deposit only under the superintendence of the Accountant of the High Court whereas if there was wardship they could be invested more profitably for the benefit of the appellant.
Mr. Justice Geoghegan stated that in all the confusion of the separate constitutional proceedings, the unsuccessful interlocutory motion, the formal objections in the Wards of Court proceedings (which he stated may not have been given separate consideration), a side issue as to whether the parents had carried out a property investment without the permission of the court, the general lack of co-operation by the parents in the wardship procedures and the element which the President perceived of urgency in relation to the money being properly invested, not enough attention was paid to the fundamental and arguable objections which the parents had to the whole procedure. Mr. Justice Geoghegan stated that insufficient importance was attached to the persistence of those objections and to the fact that they could not be characterised as in any way farfetched or frivolous. Mr. Justice Geoghegan stated that a narrow view was taken that in the Wards of Court proceedings a preliminary issue could not be set down, in advance of the hearing of the inquiry, as to whether there were other avenues open in relation to the protection of the appellant's monies.
Mr Justice Geoghegan took the view that the justice of the case required that there be a preliminary issue of that nature and that there is no jurisdictional problem about setting it down. Mr Justice Geoghegan quoted from In re D Respondent IR 449 where at 452 Finlay CJ stated:
"The jurisdiction of the High Court in lunacy matters is provided for in s9 of the Courts (Supplemental Provisions) Act 1961 . . . I am satisfied that this section must be construed as vesting a jurisdiction in the High Court, as both sub-sections 1 and 2 of it describe it as doing, the extent of which jurisdiction is described and identified by subclauses (a) and (b) by reference to jurisdictions formerly exercised, and by subclause (c) by reference to jurisdictions previously vested in the former High Court. It does not, as did s19 of the Act of 1924, transfer any jurisdiction but rather directly vests it."
Mr Justice Geoghegan said the issue in that particular case was whether a person who had no property could be taken into wardship. The problem arose because the 1871 Act was relevant only to property management. The Act, however, was merely a regulatory Act and the tenor of the judgment of Finlay CJ is to the effect that the jurisdiction of the former Lord Chancellors of Ireland was a much wider one. Before 1922 it was technically the position that the king had custody of all persons of unsound mind but his jurisdiction was always delegated to the Lord Chancellor. This was separately done by a letter written to each Lord Chancellor. S19 of the 1924 Act provided for the transfer to the Chief Justice and exercisable by him of all the jurisdiction in lunacy and minor matters which had lately been exercised by the Lord Chancellor and that at the passing of the Act was exercisable by the Lord Chief Justice of Ireland pursuant to the Government of Ireland Act 1920. Given the nature of the new State, Mr Justice Geoghegan was of the opinion that that section must be given a broad interpretation and must cover the jurisdiction exercised by the Lord Chancellor in relation to persons of unsound mind irrespective of whether the 1871 Act applied to the case in point or not. Mr Justice Geoghegan stated that an important change came about by s.9 of the 1936 Act in that by that section the jurisdiction that had been personally vested in the Chief Justice by the 1924 Act became transferred to the former High Court though it was thenceforth to be exercised by the President of the High Court, or if and whenever the President so directed, by an ordinary judge of the High Court for the time being assigned in that behalf by the President. Section 9 of the 1961 Act expressly vested the jurisdiction in the High Court but repeated the provision that it would be exercisable by the President or a judge delegated by him.
Mr Justice Geoghegan stated that for the purposes of the instant case, the significance of the jurisdiction being vested in the High Court rather than in the President of the High Court personally means that wardship proceedings are High Court proceedings and all the normal procedural devices for litigating issues are available. There is no legal impediment therefore, to an issue being tried in advance of the inquiry by whatever judge and jury as to whether it was open to the President or whatever judge might be delegated by him to protect the monies recovered by the appellant by means other than making him a Ward of Court and if so whether such a course of action would be desirable in this case. Mr Justice Geoghegan had in mind the creation of a trust or some formal scheme between the courts and the parents involving suitable undertakings and suitable reporting arrangements. When he was referring to a trust, Mr Justice Geoghegan was not necessarily referring to a trust in its strictly technical sense. It is obviously the case that in the ordinary way only the owner of property can create a trust in relation to it and that owner cannot be an infant or of unsound mind. But some members of the court, at least, recalled cases in which other arrangements were made by former Presidents though he said it was only fair to say that there may never have been formal argumentation as to the lawfulness or otherwise of such arrangements. Mr Justice Geoghegan considered that it was only fair and just that the matter should be argued and litigated, as the parents request, before the inquiry before judge and jury took place.
Mr Justice Geoghegan considered that the case should be returned to the new President of the High Court so that either he or any other judge to whom he delegates the task should fully consider the issue.The wardship jurisdiction has never been regarded as adversarial and therefore, Mr Justice Geoghegan considered that the registrar and the Office of the General Solicitor for Wards of Court should be requested to make a thorough investigation as to precedents. There was a belief that ever since the presidency of Finlay P. and possibly earlier, various Presidents have from time to time, secured appropriate arrangements through obviously caring parents so as to avoid the necessity of formal wardship and that at least one other member of the court had a similar recollection. However, Mr Justice Geoghegan said that recollection can be faulty and that it may well be that one is not comparing like with like. All the court had to decide at this stage was whether there should be a preliminary hearing of the kind the parents require. Mr Justice Geoghegan said that there should be and therefore allowed the appeal and ordered the case be remitted to the current President of the High Court for the purposes indicated in the judgment leaving the formal drafting of the issue to him, or such other judge as he may be nominate, after hearing submissions from relevant parties.
Mr Justice Geoghegan then addressed two matters to which he thought it proper to refer. One was the factor which appeared heavily influenced the former President of the High Court in insisting on quickly proceeding to the inquiry before judge and jury for the purposes of making the appellant a ward of court if found to be of unsound mind. This was the fact that the monies lodged under the superintendence of the Accountant of the High Court were on a form of deposit whereas in the view of Finnegan P. the monies could be invested more profitably if the appellant was a ward of court. Mr Justice Geoghegan took a different view and believed that the preliminary issue should be determined. At the hearing of the appeal before the court, no submissions were made as to what exactly are the respective investment rules applying to the Accountant of the High Court on the one hand and the Registrar of Wards of Court on the other hand and how flexible the jurisdiction of the President might be in advance of a formal wardship order. Mr Justice Geoghegan stated that the matter should be fully considered if the case is returned to the High Court with a view to achieving the best return on the monies pending the hearing and final determination of the issue.
Mr Justice Geoghegan referred also to the issue of delay and stated that a distinction must be made between the constitutional proceedings and the procedural objections raised in the Ward of Court proceedings. For whatever reason there seems to have been a clear delay in pursuing the former and even though the appellant was named with the parents as plaintiff the President would be correct in not having any regard to those pending proceedings while determining what should be done in the wardship proceedings. On the other hand, Mr Justice Geoghegan did not consider there was any blameworthy delay by the parents in the pursuance of their objections in the wardship proceedings. Their objections had been consistent from start to finish and Mr Justice Geoghegan did not think any delay issue could be taken against them whether in the interest of the appellant or otherwise.
Mr Justice Fennelly and Mr Justice Kearns concurred with the judgment of Mr Justice Geoghegan.
Solicitors: Eugene F Collins (Dublin) for the appellant; The General Solicitor for Minors and Wards of Court for the respondent
Joan Kelly, barrister