SUPREME COURT
207/99
Keane C.J.
Denham J.
Murray J.
McGuinness J.
Fennelly J.

EASTERN HEALTH BOARD (now THE NORTHERN AREA HEALTH BOARD)

v

E.M. & Ors.

EX TEMPORE JUDGMENT of the Court delivered by Keane C.J. on the 19th day of October 2000 

In this case at the conclusion of her Judgment the learned trial Judge said that she had misgivings as to the course that she had embarked on and that she was and I think I should use her precise words “in the circumstances having regard to the nature of this jurisdiction the jurisdiction conferred on this Court by Article 40.4.2 as explained by the Supreme Court in In Re D 1987 IR 457 I consider that I have decided a moot”. This Court is satisfied that the learned trial Judge was entirely correct in so holding and it notes that she added that she had taken some comfort from the observations of Mr. Justice O’Flaherty to the effect that cases concerning the custody of children and the protection of their rights were in a special and possibly unique category and the Court entirely insofar as it is necessary to do so endorses the observations of Mr. Justice O’Flaherty which were concurred in by the other members of the Court in that case.

This Court is concerned simply with the facts of this case and in this case as the learned trial Judge herself indicated she had unfortunately decided a moot and despite some attempt which has been made this morning to argue that she only became conscious of that fact as the evidence unfolded the Court is satisfied that she realised at the stage when she gave her careful and considered and reserved Judgment that she had in fact decided a moot

and that it was unnecessary for her to have embarked on the enquiry which she did, hearing the evidence that she did and hearing it at some considerable length.

It is the fact and the undisputed fact that, as she says, on the date of the second order made in this case the first and second named Respondents de facto had ceased to have custody of baby A. At the time she embarked on the hearing in the High Court, it was not disputed then, it was not disputed during the hearing before Miss Justice Laffoy and it was not disputed at the appeal in this Court, at every stage from the time the case was opened before Miss Justice Laffoy, that the baby was lawfully in the custody of the Eastern Health Board and that fact coupled with the fact that the putative Adoptive parents, the Respondents E and A, were abandoning any claim to be entitled to the custody of the child in the view of this Court, should have brought the enquiry under the Constitution at that stage to an end. There was nothing further to enquire into as far as the High Court was concerned. It might well be the case that other proceedings, be they civil or even criminal in nature, could have been subsequently instituted by one or more of the parties or by some other party but so far as the enquiry under Article 40 was concerned that was at an end. There was no further need to enquire into the custody of the baby since it was in the lawful custody of the Eastern Health Board.

Now the case, unusual in a number of respects, has taken another unusual course because the first and second named Respondents for whom Dr. Forde appears have appealed from the Order of the High Court on the grounds that the High Court Judge had decided a moot. For the reasons already given the Court is satisfied that that is correct and that the Order of the High Court as made cannot stand. The Court will accordingly allow the appeal and substitute for the Order of the High Court an Order reciting that at the date of the hearing in the High Court the child was in the lawful custody of the Eastern Health Board and that the

Respondents E and A were not asserting any claim to be entitled to the custody of the child and that accordingly no order was made on the enquiry under Article 40 of the Constitution. The Court will accordingly allow the appeal and substitute for the Order of the High Court an Order in those terms.