Judgment: 2009-10-06 · Court archive

High Court refuses bid to compel register of guardianship agreements

The court found no breach of the child applicant’s constitutional or Convention rights and left any decision on creating a register to the executive and Oireachtas.

High Court · [2009] IEHC 423

Who, what, where, when and why

Who
  • W. O’B. (Applicant)
  • E. R. O’B.
What

The court found no breach of the child applicant’s constitutional or Convention rights and left any decision on creating a register to the executive and Oireachtas.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

Justice O’Neill accepted that losing an agreement could create difficulties, including in an emergency, and noted that secondary evidence might establish that an agreement existed. However, he said parents could make copies and keep them safely, and that preserving the agreement was an ordinary step within their competence. He concluded that the absence of a register did not breach the applicant’s rights to welfare protection or equal treatment under Articles 40.3 and 40.1 of the Constitution.

The High Court has refused a judicial review application seeking to compel the State to establish and maintain a public register of guardianship agreements for children of unmarried parents.

The applicant, anonymised in the judgment as E. R. O’B., is a minor who brought the case through her father and next friend, W. O’B. Her parents made a joint statutory declaration in October 2006 agreeing to be her joint guardians under the Guardianship of Infants Act 1964.

The application argued that without a register, the child could be disadvantaged if the agreement were lost or destroyed, because her father’s guardianship might then be harder to prove. The applicant sought declarations that the absence of a register breached constitutional equality and personal rights, as well as rights under the European Convention on Human Rights. She also sought an order compelling the respondents to create a register.

The respondents disputed that the State had a positive duty to establish one. They argued that parents had primary responsibility for protecting a child’s welfare and could preserve the agreement, and that the risks raised were contingent and avoidable. They also challenged the applicant’s standing and said decisions about public policy and spending belonged to the executive.

Justice O’Neill accepted that losing an agreement could create difficulties, including in an emergency, and noted that secondary evidence might establish that an agreement existed. However, he said parents could make copies and keep them safely, and that preserving the agreement was an ordinary step within their competence. He concluded that the absence of a register did not breach the applicant’s rights to welfare protection or equal treatment under Articles 40.3 and 40.1 of the Constitution.

The court also rejected the Article 8 claim. Applying the test in the cited European case of Botta v. Italy, the judge found no direct and immediate link between the harm feared from loss of the agreement and the creation of a public register. He said the statutory agreement provided certainty while preserved, and that choices about whether to create a register involved policy questions for the executive and Oireachtas.

The judge rejected the respondents’ standing challenge, finding that the applicant had a real and substantial interest in a justiciable issue despite the risk being contingent and remote. He said a register might be a desirable social reform, but that was for the executive and Oireachtas to decide. The court refused all reliefs sought; it did not order a register to be established.

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