Judgment of The Hon. Mrs. Justice Susan Denham delivered on the 8th day of November, 2001.
This is an appeal by the North Western Health Board, hereinafter referred to as the plaintiff, from a judgment and order of the High Court (McCracken J.) delivered on 27th October, 2000. H.W. and C.W., hereinafter referred to as the defendants, are the parents of a baby boy, J.W., born in 2000. The High Court ordered that the plaintiff’s motion for an order permitting the plaintiff to carry out the PKU test on J.W., notwithstanding the refusal of his parents, or restraining the defendants, their servants or agents from impeding the carrying out by or on behalf of the plaintiff of the PKU test, be refused.
2. The Background
The background to this case was described by the learned High Court judge. He stated:
“There is a screening test, commonly known as the PKU test, which has been available for over thirty years for testing for the presence of four metabolic conditions and one endocrine condition in children. This test is normally carried out on new born infants between 72 hours and 120 hours after birth. It is in effect a blood test, the blood being extracted from the infant by puncturing the skin, usually in the heel of the infant, with a lancet which has a guard which ensures it can only penetrate to a limited extent, and then extracting some drops of blood, usually by pressure on the heel close to where the lancet was inserted. The resulting drops of blood are collected on what is called a Guthrie card and is sent to Temple Street Hospital in Dublin where it is tested for these conditions.
In the present case we are only concerned at this stage with the screening for three of these conditions which may be referred to briefly.
1. Phenylketonuria. This is a condition which may cause severe mental handicap, but which may be treated primarily by diet throughout the lifetime of the sufferer. It is a relatively common disorder and has an incidence of 1 in 4,500 in this country.
2. Homocystinuria. This is a metabolic condition which may cause intercranial bleeding or strokes, and also can cause dislocation of the lenses of the eye and can result in severe mental handicap. This again can be treated by diet control for life and the incidence in this country is 1 in 49,000.
3. Hypothyroidism. This condition results from the failure of the thyroid gland to produce thyroxine and again results in mental handicap. It can be treated and controlled by medication and its incidence in Ireland is 1 in 3,500.
It is common to all these conditions that they are treatable, but once the damage has been caused by the condition it is usually irreversible and thus it is medically considered of great importance to have the condition diagnosed at as early a stage as possible.
This screening has been carried out for over thirty years. Originally, the screening was only for phenylketonuria, and this was extended to the other conditions at various times up to the year 1979. This screening is not provided for by legislation, but is a service which is being provided by the Department of Health and the local health boards for the benefit of the community in general. There is no provision or regulation making it mandatory, but in reality it is now carried out more or less as a matter of course, and the Department of Health records would indicate that there are only about six cases per year in which parents refuse to have the test carried out.
In September 1990 a working group was set up by the then Minister for Health to report on metabolic disorders, which report recommended certain standard procedures with an aim or objective of 100% coverage of infants in the State. Under the heading “Responsibility of Parents” the report recommended:-
‘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.’”
3. The Facts
The facts are not in issue in this case, they were set out by the learned High Court judge as follows:
“The defendants are the parents of a baby who I shall call Paul (not his real name) who was born earlier this year. They are resident in the functional area of the plaintiff health board. Paul was in fact born at home, and shortly after his birth the nurse employed by the plaintiff sought to have the PKU test carried out on Paul. The defendants refused to allow the test to be carried out, and after some correspondence wrote to the plaintiff’s solicitors in the following terms:
‘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 these 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.’
It is accepted that at this stage there is no necessity for a screening in relation to two of the conditions normally covered by the tests, as they would already have become apparent had they been present. However, the plaintiff emphasises that the remaining three conditions which I already have described could still be present, and if identified at this stage could be treated successfully.
In this case the plaintiffs are claiming certain declarations and injunctions, namely:
‘1. A declaration that it is in the best interest of (Paul) that a PKU test be carried out on him.
2. A declaration that the refusal of the defendants to consent to the carrying out of a PKU test on (Paul) is a failure by them to vindicate the personal rights of (Paul).
3. A declaration that the plaintiff be permitted to carry out the PKU test on (Paul), subject to such conditions as might be directed, and notwithstanding the refusal of his parents, the defendants herein, to consent thereto.
4. An injunction (and if necessary an interlocutory injunction) restraining the defendants, their servants or agents, from impeding the execution by the plaintiff of the aforesaid PKU test.
5. A mandatory injunction (and if necessary a mandatory interlocutory injunction) requiring the defendants to furnish their consent to the execution of the aforesaid PKU test on the said (Paul). . . ’
This case raises very serious constitutional issues both with regard to the relationship between parents and their child and with regard to the powers and duties of the State to act for the benefit of children.
It is not disputed by the defendants that the court has jurisdiction in this matter pursuant to section 9 of the Courts (Supplemental Provisions) Act, 1961 but what is at issue is the extent of that jurisdiction. The plaintiffs for their part rely on the provisions of the Child Care Act, 1991 and in particular on section 3. . .
The plaintiffs also point to the extended powers given to a health board in relation to care orders and supervision orders, although they are not bringing these proceedings based on those provisions. . .”
4. The Judgment of the High Court
The conclusions of the learned High Court judge were as follows:
“I have already quoted the provisions of section 3 of the Child Care Act, 1991, which undoubtedly imposes an obligation on health boards to promote the welfare of children in its area ‘who were not receiving adequate care and protection’. In this regard, the welfare of the child must be the first and paramount consideration. I must, of course, in the absence of any constitutional challenge to this section, assume that it is constitutional, and accordingly it must be construed in accordance with the provisions of the Constitution. It should be noted that the Act is primarily concerned with situations where, for a child’s welfare, it is necessary that the child be taken under the care of some institution other than the family. In accordance with the presumption of constitutionality within which these provisions, must come, it must relate to exceptional cases where there has been a failure by the parents for physical or moral reasons. The Child Care Act simply provides a mechanism whereby the State undertakes its obligations under Article 42.5. Quite clearly the welfare of the child is not the only matter to be considered under s. 3 of the Act, and the rights of the parents and the position of the family unit is clearly both recognised and emphasised in sub-section 2(b) and (c) of that section.
Article 41.1 places the family in a very special position as being the natural primary and fundamental unit group of society. It also provides that the family possess rights which are antecedent and superior to all positive law. It is indeed probably the provision in the Constitution which comes nearest to accepting that there is a natural law in the theological sense. There have been a number of cases which have spoken of a hierarchy of rights under the Constitution, but the wording of Article 41.1 certainly would appear to place the rights of the family and therefore presumably the rights of the parents in relation to their children, very high up in this hierarchy. In effect, in the present case, I am being asked to balance those rights against the rights of Paul as an individual, and the plaintiff argues that I should do this by seeking to ascertain what is in the best interests of Paul. There is no doubt that medical opinion would emphatically state that it is in Paul’s best 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.
Parents constantly make decisions of this nature, and subject their children to risks which objectively may not be justified, and which may have disastrous results. Examples outside the medical field may be decisions to allow a child to cycle to school on a busy road, or decisions to allow a teenager to find his or her own way home from a disco. Of course, in extreme cases the putting of children into a situation of risk may justify State intervention, but such cases would be extreme and therefore exceptional cases. In the medical field, the State provides many facilities for the protection of children, such as inoculations 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 has chosen to leave it to the decision of the parents to have these vaccinations.
Undoubtedly the strongest case in favour of the plaintiff is Ryan v. The Attorney General but I think this case must be seen in its context. This was a situation where the State sought to oppose the treatment of water for the common good,
and in which one individual fought to prevent the entire nation from having the benefit of fluoridation. The present case is quite the opposite. Here the State is providing a service to the public in general, which will not be affected by the outcome of these proceedings. In the Ryan case, one suspects the result would have been very different if Mrs. Ryan had simply sought a declaration that she and her family were not bound to drink from the common water supply, and that in effect is the argument being made by the defendant in the present case.
The framers of the Constitution used the word ‘exceptional’ in Article 42.5, and one must assume that they did so after very careful consideration. Indeed, the use of that word is totally consistent with the provisions of Article 41.1. There are of course cases in which the State may interfere with parental rights, and many of these are detailed in the Child Care Act, 1991. They are the exceptional cases. 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 decision was wrong. If the State were entitled to intervene in every case where a professional opinion differed from that of parents, or where the State considered the parents were wrong in their 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 word of the Constitution.
Finally, I should consider the wording of Article 40.3.2, which would appear to be the constitutional justification for the intervention by the plaintiff in this case. The ‘unjust attack’ on (sic) ‘injustice done’ required by this provision can only be the refusal of the defendants to allow the test to be carried out on Paul. As I have already indicated, I do not think that there has been an injustice to Paul, but even if I am wrong, the State has not chosen to use its laws to protect Paul in the manner envisaged by Article 40.3.2. The State, through the plaintiff as an organ or body set up by the State, appears to be asking the court to undertake the obligation imposed by the Article. If the State believes that it has 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. That legislation could then be tested in the courts for its constitutionality.
Accordingly I refuse the relief sought.”
5. Grounds of Appeal
Against the said judgment and order of the High Court the plaintiff has appealed.
The grounds of appeal were as follows:
“1. The learned trial judge erred in law in determining that the jurisdiction of the court to override the refusal of the respondents herein to consent to the administration of the PKU test on J.W. only arose in exceptional circumstances where the respondents for physical or moral reasons failed in their duty towards the said child.
2. The learned trial judge erred as a matter of law in determining that the obligation of the health board provided for in section 3 of the Child Care Act, 1991 must relate to exceptional circumstances where there has been a failure by parents for physical or moral reasons.
3. The learned trial judge failed to have any or any sufficient regard to the uncontradicted medical opinion that it is in the best interest of J.W. to have the PKU test done.
4. The learned trial judge erred as a matter of law and/or fact in determining that the right of J.W.’s parents to decide that they do not want him to have this test overrides the objective benefit to J.W. of having the PKU test administered to him.
5. The learned trial judge erred in law and in fact in determining that the refusal of the respondents herein to consent to the administration of the PKU test on J.W. was not an exceptional case within the meaning of Article 42.5 of the Constitution of Ireland.
6. The learned trial judge erred in law in failing to have any or any sufficient regard to the personal rights of the said J.W. guaranteed by Article 40.3 of the Constitution of Ireland, and in particular to his right to be afforded medical treatment and diagnosis, and to the obligation of the respondents, and of the appellants, to defend and vindicate those rights.
7. The learned trial judge erred in law in concluding that the appropriate and/or only mechanism for the compulsory administration of the PKU test was through legislation.
8. The learned trial judge failed to have any or any adequate regard to the rationality of, or basis for, the belief of the respondents that the PKU test should not be carried out on their child.
9. The learned trial judge erred in law and in fact in concluding that the issue of whether the PKU test should be administered to J.W. notwithstanding the objection of the respondents herein, was analogous or similar to decisions by parents outside the medical field involving a risk to their child.
10. The learned trial judge erred in law and in fact in suggesting an analogy between the application of the appellant to override the refusal of the respondents to consent to the PKU test and the compulsory administration of vaccinations.
11. The learned trial judge erred in law in failing to have regard to and/or failing to properly apply the best interests of J.W. to the within proceedings.”
6. The Constitution and the Law
Relevant articles of the Constitution of Ireland and statutes were referred to by counsel. They include the following:
The learned High Court judge regarded the most controversial case quoted as Ryan v. The Attorney General  I.R. 294. At p. 350 O’Dalaigh C.J. stated:
“Section 3 of the Child Care Act, 1991:
Constitution of Ireland, Article 40.3:
“(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.) insofar as 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.”
“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.”
Constitution of Ireland, Article 41.1:
“1. 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.
2. 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.”
Constitution of Ireland, Article 42:
“1. 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. . .
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 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 parent. 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 illustrate the fact that the duty of the State under Article 40.3.2. is not unlimited or universal the learned High Court judge referred to Hanrahan v. Merck Sharp and Dohme  I.L.R.M. 629. In particular, reference was made to p. 636 - where Henchy J. stated:
“[T]he guarantee to respect and defend personal rights given in Article 40.3.1 applies only ‘as far as practicable’ and the guarantee to vindicate property rights given in Article 40.3.2 refers only to cases of ‘injustice done’. The guarantees, therefore, are not unqualified or absolute. I find it impossible to hold that Article 40.3.1 means that a plaintiff in an action in nuisance is to be relieved of the onus of proving the necessary ingredients of that tort. Neither, in my view, does Article 40.3.2 warrant such a dispensation, for the guarantee of vindication there given arises only ‘in the case of injustice done’, so that it is for the plaintiff to prove that the injustice relied on was actually suffered by him and that it was actually caused by the defendant.”
In relation to the rights and duties of the State to a child reference was also made to In re The Adoption (No. 2) Bill, 1987,  I.R. 656. In that case Finlay C.J. said at p. 663:
“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.
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 were to be disposed of as such.”
The PKU test is invasive of the child, albeit in a minor manner, and therefore may not be performed without consent. Primarily the matter of consent is for the parents of a child. In this case the parents have refused consent. Apparently six or seven sets of parents in Ireland refuse annually to consent to the PKU test being carried out on their child. In this case the plaintiff seeks an order of the court permitting it to carry out the test.
As I stated In re A Ward of Court (withholding medical treatment) No. 2  2 I.R. 79, at p. 156:
Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g., in regard to contagious diseases or in a medical emergency where the patient is unable to communicate. This right arises out of civil, criminal and constitutional law. If medical treatment is given without consent it may be trespass against the person in civil law, a battery in criminal law, and a breach of the individual’s constitutional rights. The consent which is given by an adult of full capacity is a matter of choice. It is not necessarily a decision based on medical considerations. Thus, medical treatment may be refused for other than medical reasons, or reasons most citizens would regard as rational, but the person of full age and capacity may make the decision for their own reasons.
If the patient is a minor then consent may be given on their behalf by parents or guardians.”
The PKU test was sought to be given to the child by the plaintiff as part of a public health screening process. It was a routine process in a national screening programme. There was no particular reason why this child should be tested for PKU. There was no relevant family history. There were no circumstances which made it particularly apt for the child to have the test. The only form of the test offered was by way of taking blood from the heel of the child by way of a heel prick.
The plaintiff has no complaint about how the respondents take care of the child. They have taken appropriate care of all their children. In relation to another of their children they refused a PKU test and the child was taken into care pursuant to s. 18 of the Child Care Act, 1991 by the plaintiff so that the test could be administered and thereafter the child was returned to the care of the parents. Later, in a similar case, the Circuit Court held that s. 18 of the Child Care Act, 1991 could not be used for this purpose. That decision was not an issue in this case.
The PKU test is part of a health screening programme conducted throughout Ireland. Over the past thirty years most, if not all, countries in Western Europe have developed PKU screening, as has the United States of America. In no country is the test compulsory. To date neither the executive nor the legislature in Ireland has sought to make the test compulsory. The situation has been that there is a scheme and parents have been advised to consent to the test but they may refuse.
Under the Constitution the State recognises the family as the natural primary and fundamental unit group of society: Article 41.1.1, Constitution of Ireland. Further, the State 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 41.1.2, Constitution of Ireland. Thus, the family is the basic unit in our society and in accordance with the Constitution the State will protect it. The family in the context of Article 41 of the Constitution is the family founded on the institution of marriage.
The fact that the family is the fundamental unit group of society is a constitutional principle. Whatever historical origin or origins may be given for this principle it is a principle of the Constitution. In this case the family is one recognised and protected by the Constitution. The responsibility and authority of the family is exercised by the defendants. The child is a member of the family and has the benefit of being a part of that unit. The child is the responsibility of the parents. The rights of the parents in exercising their responsibility are not absolute; the child has personal constitutional rights. The child has rights both as part of the unit of the family and as an individual. Legislation has long recognised the paramountcy of the welfare of the child.
In previous cases a balance has been sought between the different rights and interests in cases involving parents and children. Initially cases were more protective of parental authority and the family in all but very exceptional cases. However, in recent times the child’s rights have been acknowledged more fully. It is settled law that the courts have a constitutional jurisdiction to intervene to protect the constitutional rights of a child. The courts will protect such rights whether legislation exists or not. In this case the issue is whether the court should apply constitutional principles and intervene to override the refusal of the parents to give consent to the PKU test.
The constitutional principles applicable are those to be found in Article 40.1, Article 41 and Article 42.5 of the Constitution of Ireland. These should be construed harmoniously. Thus, the child has personal rights: Article 40.1 of the Constitution of Ireland. The State has a duty to respect, and, as far as practicable, by its laws to defend and vindicate these rights. The State has a duty to vindicate the life and person of the child. Thus, the Guardianship of Infants Act, 1964 and the Child Care Act, 1991 advanced the concept of the welfare of the child as the first and paramount consideration.
However, the legislation and the rights of the child have to be construed in accordance with Article 41 which places the family at the centre of the child’s life and as the core unit of society. The language of Article 41 (set out previously) is clear and strong. The family is the fundamental unit group of society and the State (which includes the courts) guarantee to protect the family in its constitution and authority.
Article 42.5 envisages, in exceptional cases, where parents fail in their duty to the child, that the State as guardian of the common good shall by appropriate means endeavour to supply the place of the parents, but this is subject to the rights of the child. It is clear that under Article 42.5 the State is the default parent and not the super parent.
The Constitution clearly envisages the common good requiring the State to take the place of parents where they for physical or moral reasons fail in their duty towards their children. When taking this approach due regard must be given to the right of the child to its family. However, the child at all times retains his or her personal rights also.
In F.N. v. Minister for Education  1 I.R. 409 the rights of a child were analysed. Geoghegan J. at p. 415 - 416 stated:
“In G. v. An Bord Uchtála  I.R. 32, the constitutional rights of a child were considered in both the High Court and the Supreme Court. In the course of his judgment in the High Court, which was upheld by the Supreme Court, Finlay P., at p. 44, having upheld the right of a parent to the custody and control of the upbringing of a daughter, went on to observe as follows:-
‘In my view, her daughter likewise has a constitutional right to bodily integrity and has an unenumerated right to an opportunity to be reared with due regard to her religious, moral, intellectual, physical and social welfare. The State, having regard to the provisions of Article 40, s. 3, sub-s. 1, of the Constitution must by its laws defend and vindicate these rights as far as practicable.’
O’Higgins C.J. in the Supreme Court pointed out that a child having been born has the right to be fed and to live, to be reared and educated, and to have the opportunity of working and realising his or her full personality and dignity as a human being, and that these rights must equally be protected and vindicated by the State. While normally these duties would be carried out by the parents, in special circumstances the State takes on the obligation. Walsh and Henchy JJ. made similar observations. The vindication by the State of a child’s constitutional rights has been further elaborated upon by the Supreme Court in The Adoption (No. 2) Bill, 1987  I.R. 656 and M.F. v. Superintendent Ballymun Garda Station  I.R. 189. Having regard to the principles enunciated in these cases, I would take the view that where there is a child with very special needs which cannot be provided by the parents or guardian there is a constitutional obligation on the State under Article 42, s. 5 of the Constitution to cater for those needs in order to vindicate the constitutional rights of the child. It is not necessary for me to determine how absolute that duty is; conceivably there may be very exceptional circumstances where there is some quite exceptional need of the child which the State cannot be expected even under the Constitution to provide. In this connection The State (C.) v. Frawley  I.R. 365 was relied on by counsel for the State. But it would seem to me that on the balance of probabilities the provision of such necessary accommodation, arrangements and services by the State as might meet the necessary requirements of this applicant is not so impractical or so prohibitively expensive as would come within any notional limit on the State’s constitutional obligations. There may be differences of opinion among the experts as to the level of staffing arrangements which would be required, even on a temporary basis, for the proper care of F.N. but I am not convinced at present that even the more extreme view taken by Doctor Byrne as to staff ratio is prohibitively expensive. He has given evidence that similar facilities are available in Canada and other countries. I would have thought that in considering questions of expense and practicality, the State would have regard not merely to the immediate cost but to a possible long term saving of cost if the special treatment of recalcitrant children led in the long term to a reduction of crime and drug abuse. But these are obviously to some extent areas of policy. I advert to them merely to indicate why it is not self-evident to me that the more elaborate requirements suggested by Doctor Byrne fall outside the ambit of any constitutional duty owed by the State.
In summary I take the view that the State is under a constitutional obligation towards the applicant to establish as soon as reasonably practicable, either by use of s. 58, sub-s. 4 of the Act of 1908 or otherwise, suitable arrangements of containment with treatment for the applicant.”
It is important to note that in that case there was no issue as to parental responsibility. The child was effectively an orphan in the care of the State.
The circumstances of this case include parental responsibility as a factor. The parents have decided not to have the child receive the PKU test in the form offered by the plaintiff. That decision has to be balanced against the authority of the Health Board and its responsibility, with due regard to the child’s rights. Essentially at issue is the balance of responsibility between parental rights, the Health Board and the child’s rights as a member of a family and as a person.
The involvement of a Health Board in the care of a child in a family is a sensitive matter. In this case it was submitted that the plaintiff did not wish to be intrusive. However, it has a duty to the children in its area. In addition, the plaintiff is concerned that it would have a liability. The plaintiff is a statutory body given a statutory responsibility for the welfare of children in its area and potentially a liability for failing to insure the welfare of the child.
The screening test in issue is not a scheme established by statute. The Oireachtas has not decided that every child in the country should have this test. Thus this case does not require a decision as to the constitutionality of any legislation or the balancing of the common good against individual or group rights in relation to that legislation. The fact that there is no legislation seeking to make the PKU test compulsory is a relevant factor. If there was such legislation it would be presumed to be constitutional yet open to review. Any such review would involve consideration of the common good while analysing the rights of the family and the child. The fact that there is no legislation requiring that children be given the PKU test is a factor of importance in that as a consequence the analysis leading to a decision commences not from such legislation but from the Constitution. Any comment as to what the situation would be if there was legislation governing the PKU test could only be speculative. Legislation is not an issue in this case. Nor is it appropriate to indicate whether or not the Oireachtas should legislate.
The screening test is available through health boards. Health boards have a function to promote the welfare of children in their area who are not receiving adequate care and protection. In this function the board must have regard to the welfare of the child as the first and paramount consideration, to the rights and duties of the parents, to the wishes of the child (having regard to his age and understanding), and to the principle that it is generally in the best interests of a child to be brought up in his own family: s. 3, Child Care Act, 1991. Thus the matter is a balancing of the rights and responsibilities of the family, the child and the Health Board.
There is no precedent in our common law jurisprudence which is on all fours with this case. Some case law in the United Kingdom was opened, but none is apt. In Re: C (a child HIV test)  3 F.C.R. 289 the circumstances were very different. There caring parents had decided not to have a baby, whose mother was HIV positive and who was breast feeding the child, tested for HIV. Breast feeding was known to be high risk for HIV transmission. The factors were such that a decision in the case would not have the effect of making such a test mandatory for all babies. The child was in a situation which was life threatening. That decision is distinguishable from the circumstances of this case.
Similarly, Ryan v. The Attorney General  I.R. 294 was decided on a very different set of facts. The plaintiff sought an order which would effectively involve the entire community. The order sought was effectively a policy decision for society. On the facts as then found there was no breach of a constitutional right of the plaintiff. In this case the order sought relates to the exclusion of a child from a scheme where the test is available in individual units and not through the community water supply. Thus a differing balance of principles has to be analysed. Ryan is distinguishable also.
I do not find any of the cases cited from other jurisdictions helpful. They raise different issues. None of them relate to the type of circumstances herein, i.e. a screening test such as the PKU test. This may itself be informative. Cases from other jurisdictions were not helpful also as they do not apply the constitutional principles applicable here. Further, many of the cases referred to decisions relating to persons in wardship, which is not the situation here.
During the submissions before the court, counsel informed the court that the basis for the refusal to let the child have the blood screening test was not religious. Thus this is not a case where there is a faith factor or a balancing of a religious element.
The decision in this case requires the correct constitutional balance between the responsibility of the parents and the health board and the constitutional rights (family and personal) of the child. The fundamental principles by which the community wishes to live are to be found in the Constitution. The Constitution clearly places the family as the fundamental unit of the State. The family is the decision maker for family matters - both for the unit and for the individuals in the family. Responsibility rests fundamentally with the family. The people have chosen to live in a society where parents make decisions concerning the welfare of their children and the State intervenes only in exceptional circumstances. Responsibility for children rests with their parents except in exceptional circumstances. In assessing whether State intervention is necessary the fundamental principle is that the welfare of the child is paramount. However, part of the analysis of the welfare of the child is the wider picture of the place of the child in the family; his or her right to be part of that unit. In such a unit the dynamics of relationships are sensitive and important and should be upheld when possible as it is usually to a child’s benefit to be part of the family unit.
In seeking the balance to be achieved between the child’s rights within and to his family, and the family (as an institution) rights, and the parents’ right to exercise their responsibility for the child, and the child’s personal constitutional rights, the threshold will depend on the circumstances of the case. Thus, if the child’s life is in immediate danger (e.g. needing an operation) then there is a heavy weight to be put on the child’s personal rights superseding family and parental considerations.
In assessing the balance to be achieved in this case it is an important fact that there is no family history which makes it more than the most remote possibility that the child could have the illness to be tested for. His siblings have been tested and the result is negative. It would be relevant if the child had a real or significant chance of having the disease being screened. On the facts of this case this is not likely. Statistics are not the basis on which any decision will rest. Every child is cherished under the Constitution, cherished in accordance with the principles of the Constitution. However, perhaps statistics would illustrate how a hard case has the potential to make bad law.
In assessing the balance to be achieved in this case it is relevant to consider the threshold which it would set for this and other medical tests and for matters such as inoculations. If the responsibility for making this decision is transferred from the parents to the State then it would herald in a new era where there would be considerably more State intervention and decision making for children than has occurred to date. Every day, all over the State, parents make decisions relating to the welfare, including physical, of their children. Having received information and advice they make a decision. It may not be the decision advised by the doctor (or teacher, or social worker, or psychologist, or priest or other expert) but it is the decision made, usually responsibly, by parents and is abided by as being in the child’s best interest. Having been given the information and advice, responsibility remains with parents to make a decision for their child. The parents are responsible and liability rests with them as to the child’s welfare.
In exceptional circumstances - such as where a child needs acute medical or surgical care - the expert may be part of an application for a court order to protect the welfare of the child by seeking a judicial decision different from that of the parents. This arises only in exceptional circumstances. Even if acute medical care is advised by some medical experts and the parents consider that the responsible decision may be to refuse such care it may be within the range of responsible decisions. This may occur where a child is suffering a terminal illness and parents may decide responsibly that he or she has suffered enough medical intervention and should receive only palliative care.
I use these examples to illustrate the issues raised by the parties in this case and the effect any decision will have on family life throughout the community. Although the case relates to one child in one family and it is decided on its facts, there is no doubt that through this decision a precedent will have been established.
If the court were to order that the child receive the screening test then it would effectively mean that the test was compulsory for children. This would mean that the court, without the benefit of the kind of analysis and preliminary work which would precede legislation, would be making a policy decision for all children that this test be compulsory. Such an outcome would be at odds with the approach previously taken in Ireland that medical tests or procedures not be compulsory. There is a very heavy burden on the plaintiffs to establish why the previous approach should be altered, why the courts should make a policy decision in relation to a medical procedure for all children, and to establish why the courts should make a decision which, if it were to be made by the State, would more appropriately be made by the legislature.
There is a constitutional presumption that the welfare of a child is to be found within the family unless there are compelling reasons why that cannot be achieved or unless there are exceptional circumstances where parents have failed to provide education for the child: In re J.H. (an infant)  I.R. 375. It is not suggested that the child be removed from the defendants in this case; the child will remain within the family no matter what the decision. However, any intervention by the courts in the delicate filigree of relationships within the family has profound effects.
The appropriate test for court intervention
A decision in this case involves an application of constitutional principles. It is a weighing and balancing of constitutional principles.
The test to be applied is not the simple medical test. Medical opinion before the court was unanimous as to the appropriateness of the PKU screening test. However, the test for the court is not the simple test as to whether the benefit of the PKU test outweighs the medical risk. If that were the test, in my view, the decision would be clear and in favour of ordering the PKU test. However, that is not the test to be applied to the case.
Ward of Court Test
Nor is the test to be applied that of seeking out what would be the decision of responsible parents. The child is not an orphan or a ward of court. Thus the test is not that which would be applied if the child was a ward of court. The entire circumstances relating to the child have to be taken into consideration. They include the parental decisions.
A constitutional test has to be applied. In this case the test involves the weighing of all the circumstances, including parental responsibility, parental decisions, the child’s personal rights, and the rights of all persons involved to and in the family, to determine in these circumstances what is in the best interests of the child. A factor in these circumstances is the medical advice which will carry weight but which must be balanced (in this case) against the parental decision and the rights of the child and the rights of all to and in the family to achieve a decision in the child’s best interests.
It is complex and difficult to weight these different factors one against the other. First, they are of a different essence - a medical analysis on the one hand and social, emotional, constitutional and legal considerations on the other hand - often in juxtaposition. Secondly, they are all profoundly important factors. There is no easy weighing of the scales. The ultimate decision is one to be grounded on fundamental constitutional principles.
The Constitution recognises the family as the fundamental unit group of our society. Even when, as here, it is alleged that parents have failed in their duty to the child and the State endeavours to supply the place of parents it does so with due regard to the rights of the child. The rights of the child encompass the panoply of constitutional rights which include personal rights to life and bodily integrity. However, in addition the child has a right to and in his family. When assessing the welfare of a child - the fundamental concept when analysing the position of a child - complex social, political, educational and health rights of the child in and to his family are important. The bonds which bind a child in a family are strong. However, any intervention by the courts in the delicate filigree of relationships within the family has profound effects. The State (which includes the legislative, the executive and the courts) should not intervene so as to weaken or threaten these bonds unless there are exceptional circumstances. Exceptional circumstances will depend on the facts of a case; they include an immediate threat to the health or life of the child.
The principle behind excluding the State from decision making in relation to the child where parents are exercising their responsibilities and duties is a constitutional principle. It is one of the fundamental principles of the Constitution. The Constitution describes a society which aspires to a community of families. Families are to be protected. This means that State interventions are limited.
In relation to the child, the fundamental principle is the welfare of the child. The welfare of the child includes religious, moral, intellectual, physical and social welfare. These elements must be analysed in light of the facts relating to the child and the family in issue. The court has a constitutional duty to protect the life or health of the child from serious threat and the court has a constitutional duty to protect the family. A just and constitutional balance has to be sought.
If the court were to order the PKU test be given in this case it would effectively mean that the PKU test was compulsory throughout Ireland. This would flow from the fact that the medical risks are classed as minimal for all and the benefit to those cases detected and treated substantial. Such a test would be of universal application. It would mean effectively that parents have no right to refuse. Such a decision would have a far reaching effect. On the one hand it would effectively turn into law something which is at present only departmental policy, a course of action much more appropriately a matter for the executive and legislature. Also, it would establish a very low threshold for court intervention in future cases in relation to children.
The test is whether in all the circumstances it would be constitutional for the court to order that the PKU test be made. As to whether it would be constitutional involves the weighing in the balance of a number of competing constitutional rights and principles.
In light of the circumstances of this case I would not interfere with the parental decision. The plaintiff has no complaint about how the respondents take care of the child, the plaintiff raises only the issue of the PKU test in relation to which the defendants have made the decision to refuse the test for their son in the form offered. They have been fully informed of the medical view but they have taken a decision wider than a purely medical decision and have included factors other than concerns of the physicians. In reaching this opinion I am not in the position of the parents nor am I exercising a parens patriae jurisdiction. I bear in mind the relevant constitutional rights and principles. These include: the right of the child to his fundamental rights; the fact that the paramount consideration is the welfare of the child,which extends wider than the single medical issue; the rights of the child in and to his family; the rights and duties of the parents to make and bear responsible decisions and their liability thereto; the rights of all the individuals to their family in its strengths and weaknesses; and the duty of the Health Board under the Act of 1991 in relation to the child.
Balancing these principles and rights, in the circumstances of the case, I am of the opinion that the court should not intervene to order the screening test on the child.
Legislation - s. 3, Child Care Act, 1991 - imposes a duty on the health board to promote the welfare of children in its area. The welfare of the child is of paramount consideration but this must be considered with due regard to the fact that it is usually in the best interests of the child to be brought up in his own family. The legislative duties have to be interpreted in accordance with the Constitution. The State - the Health Board - may intervene in the family, may interfere with the rights of family as a unit, and the rights of the child and parents pursuant to Article 41 of the Constitution, if it is justified pursuant to Article 42.5 when parents have failed for physical or moral reasons in their duty to their children or when other constitutional rights of the child are breached or are in danger of being breached.
The test to determine when there should be an intervention by the courts is established in light of the Constitution, especially Article 40.3, 41 and Article 42.5. Article 42.5 states:
“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 question is whether the defendants, while exercising their responsibility and duty to their child under the Constitution (Article 41), failed in their duty to their child, so that the child’s constitutional rights (including the right to life and to bodily integrity) were or are likely to be infringed. In analysing this the child’s rights to and in his family is a factor. Consideration has to be given as to whether the State (whether it be a health board or other institution of the State) as guardian of the common good should by appropriate means endeavour to supply the place of the parents to ensure that the welfare of the child is the paramount consideration, but always with due regard to the natural and imprescriptible rights of the child including his rights in and to his family.
The decision as to the PKU test is one of very, very many which parents make about their children every day. These decisions, medical and otherwise, are usually not challenged by anyone even if they are not in accordance with specific expert advice. It is only in exceptional circumstances that courts have intervened to protect the child to vindicate the child’s constitutional rights. The court will only intervene, and make an order contrary to the parents’ decisions, and consent to procedures for the child, in exceptional circumstances. An example of such circumstances in relation to medical matters may be a surgical or medical procedure in relation to an imminent threat to life or serious injury.
Applying that test to this case I am of the opinion that it has not been established that this is an exceptional case. The defendants exercised their parental responsibility and duty to the child. It has not been established that they have failed in their duty to the child so that the child’s constitutional rights have been or are likely to be infringed, in order that the courts, as guardian of the common good, should intervene to order the taking of the PKU test by way of the blood test as suggested, having regard to the paramountcy of the welfare of the child but with due regard to the rights of the child, including all his constitutional rights.
The decision is that of the defendants, the parents. The responsibility and liability rests with the parents. Once the plaintiff fully informed the defendants about the tests, their responsibility and liability ceased.
There are other methods of screening for the diseases in issue. However, the evidence was that testing by way of hair or urine is not as reliable as by blood. The defendants have indicated that they would make hair and/or urine samples available for screening. However, the department having provided an effective scheme, the plaintiff has no obligation to set up further schemes every time a family finds a national scheme unacceptable.
In my opinion the order of the High Court was correct. For the reasons given, I would dismiss the appeal.