THE SUPREME COURT
273 & 283/06Murray C.J.
IN THE MATTER OF THE CONSTITUTION
IN THE MATTER OF N.
N and N
HEALTH SERVICE EXECUTIVE
G and G
AN BORD UCHTÁLA
Judgment of Murray C.J. delivered the 13th day of November, 2006
1. Having also come to the conclusion that the interests and welfare of the infant in this case require that she be returned to the custody of her parents, I agree with the conclusions reached in the judgments of my colleagues, Hardiman J., Geoghegan J. and Fennelly J. for the reasons set out in their judgments which relate to the issues necessary to be decided in this case. I do not consider it necessary to address further those matters to which they have given full consideration. Since the claim in this case has been made by way of proceedings pursuant to Article 40.4. of the Constitution and since the immediate care and welfare of the infant is a matter to which the Court must have regard, it is necessary to address the form of order which the Court should make.
2. A successful application pursuant to Article 40.4. concerning an unlawful detention would normally lead to an order for the release of the person concerned from the unlawful detention with no further order being necessary. In this case there are special circumstances, namely the welfare of an infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this Court pursuant to A. 40.
3. The claim of the third and fourth named respondents in this case, which was also based essentially on the welfare of the infant, was that they have been and are entitled, as of right, to retain her in their custody. It is this custody which the applicants claimed amounted to unlawful detention within the meaning of Article 40 of the Constitution. On the basis that the respondents’ claim is not well-founded it remains for the Court to make such order as it considers appropriate in a case of this nature pursuant to Article 40.4.2 of the Constitution. At the time of the infant’s placement with the respondents and at least up until the time when her parents, the applicants, withdrew their consent to the adoption and sought the return of the infant, the respondents’ custody of the infant was lawful. That custody was permitted to continue while these proceedings were pending, although at one point during the proceedings the infant was made a Ward of Court and provision made for the applicants to meet with her. That custody or detention is now at an end. In short, the respondents are no longer entitled as of right or as a matter of law to the custody of the infant. Accordingly the infant must be released from that custody with a view to returning her to that of her parents.
4. Nonetheless it remains for the Court, having regard to the constitutional rights and welfare of the infant, to decide on the future but immediate care and custody of the infant with a view to giving effect to the consequence of the Court’s decision namely her return to the custody of her parents. In this regard I would recall that in Re. The Adoption (No. 2) Bill, 1987 Finlay C.J., in pronouncing the judgment of the Court, noted (at 663) that in addition to its rights identified in Articles 41 and 42 of the Constitution an infant also had “other personal rights which, though unenumerated, derived from the Constitution”. He went on to say, that in any event, “… by virtue of Article 40, s. 3 of the Constitution [the State] is obliged, as far as practicable to vindicate the personal rights of the child …”. The Courts established by the Constitution, as the judicial organ of State, are enjoined to observe that obligation. Where an infant is being transferred from the custody of a couple with whom it has formed an attachment to the custody of natural parents it is clearly in the interests of her welfare as guaranteed by the Constitution that such a transfer should take place in a manner and circumstances which, as far as practicable, protects that welfare so that any adverse effects on the child are obviated or minimised. In my opinion it is the duty of the Court to protect those rights.
5. In my view the Court has jurisdiction, in the circumstances of a case such as this, involving as it does a minor of very tender age, to make ancillary or interim orders concerning the immediate custody of such infant which are necessary in order to protect her rights and welfare pending effect being given to the substantive order of the Court.
6. I am reinforced in that view by the decision of this Court in D.G. –v- Eastern Health Board  3 I.R. 511 where a conflict had arisen between a minor’s constitutional right to liberty and an order directing his detention in St. Patrick’s Institution for three weeks solely because that was essential in order to provide for his welfare having regard to a severe personality disorder. He was 17 years old at the time of this Court’s decision. The High Court had ordered the minor’s detention in St. Patrick’s Institution in the absence of any other suitable facility within the State and it being therefore the place most suitable to ensure his welfare having regard to his needs.
7. In that case Hamilton C.J., delivering the majority judgment, found:
8. In approving the order of the High Court the majority judgment of the Court acknowledged that it had jurisdiction in certain circumstances to give priority to the welfare of the minor over other rights although it was one which could only be exercised in exceptional circumstances and subject to strict conditions.
“(1) The learned trial judge had jurisdiction to make the order which is the subject matter of the appeal herein;
(2) Having that jurisdiction, he exercised the same in a lawful manner, consistent with the requirements of the welfare of the applicant;
(3) He exercised such jurisdiction for a short period namely three weeks and that he was correct in so doing.
The jurisdiction which I have held is vested in the High Court is a jurisdiction which should be exercised only in extreme and rare occasions, when the Court is satisfied that it is required for a short period in the interests of the welfare of the child and there is, at the time, no other suitable facility.
The exercise by the High Court of its jurisdiction in this regard should not in anyway be used by the respondents in these proceedings to relieve them of their statutory obligations in regard to the applicant and they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant and if any such arrangements can be made, he should not be detained in a penal institution.”
9. In my view this is such a case and indeed the circumstances could be said to be more exceptional. It goes without saying that in this case the infant must at all times be in the care and custody of other persons. It is common case among all parties, the applicants, the respondents and the Health Service, that every effort and arrangement should be made, under professional supervision, to ease the transition of the infant from the custody of the respondents to those of the applicants. Such an approach is essential to the welfare of the infant because a peremptory transfer would be potentially damaging to the infant. Reference has been made in the judgments of the members of the Court to the reservations expressed on behalf of the respondents as to their capacity to cooperate fully with such arrangements but the Court cannot presume, at this stage, in the light of the decision which it makes today, how they will respond to the needs of the infant in this regard.
10. The present situation is as follows. The custody which the respondents exercised in respect of the infant on the basis of its placement with them or any other basis which may have been relied upon up to now is terminated. It was unlawful and she is now released from it.
11. Having regard to the evidence concerning the interests and welfare of the infant it is open to the Court, and indeed in my view incumbent upon the Court, to make provision for the manner in which the transfer of full custody to the applicants should be achieved during a purely transitional period. Although there was evidence, relevant to the issue in this case, concerning the need for what was variously described as a phased transfer of custody from the respondents to the applicants, there was no detailed evidence given as to precisely how this might be best achieved. This is because although the desirability, in principle, of a phased transfer of custody in the interests of the infant was relevant to the issues to be determined in these proceedings, the actual methods or arrangements by which it would be brought about were not relevant and not addressed. That only arises as a distinct and separate matter once the issue in these, the Article 40 proceedings, has been determined. That having been determined, it is then a separate matter for the Supreme Court to subsequently decide, by way of an ancillary order, how a phased transfer of custody may be best achieved in the light of the relevant facts and circumstances which will now arise following the Court’s decision in this case.
12. The Health Service, in the circumstances of the case, is particularly well placed and has a responsibility to provide professional advice and supervision as to how this might be achieved. Obviously it is similarly open to the other parties to obtain professional advice or make submissions concerning this matter.
13. For that purpose the Court requires that further submissions be made, having regard to the facts and circumstances which now arise, so that the Supreme Court can decide what form the further order should take. Clearly the parties must have a reasonable time to prepare for that question but it is also in the interests of the child that it should be dealt with the shortest possible time. To that end that matter will be listed before the Supreme Court for hearing in the immediate future on a date to be notified to the parties by the Registrar. In the light of the submissions of all the parties, and obviously much may depend on the cooperation of the parties, the Court will determine whether it is possible to make the ancillary order on that date or whether further submissions and consideration will be required in the matter.
14. In the meantime, for that brief period, the Court will in the interests of the infant, make an interim order authorising, by virtue of that order, the infant to remain in the custody of the respondents.
15. The order of the Court will accordingly be:
(a) An order directing the release of the infant from the custody of the third and fourth named respondents and returned to that of her parents, the applicants;
(b) An order that the question as to the appropriate manner and arrangements by which the transfer of the custody of the infant from that of the respondents to the applicants be determined by the Supreme Court on such date as it considers appropriate;
(c) That the infant remain in the custody of the respondents pursuant order of this Court until further Order in the further matter to be decided by it.