In the matter of JJ (Unapproved)

Smart Summary (Beta)

Factual and Procedural Background

The Supreme Court considered an appeal arising from orders made in the High Court wardship jurisdiction concerning a minor (“Minor”). Proceedings had been initiated by The Hospital by originating summons seeking directions on the Minor’s treatment for a severe dystonic condition that caused significant pain. The President of the High Court, acting in wardship, (i) appointed a guardian ad litem, (ii) made an order on 15 September 2020 taking the Minor into wardship, and (iii) subsequently reopened the inquiry when new medical evidence emerged indicating some improvement in the Minor’s condition. The Minor’s parents (“Parents”) contended that the blanket wardship order unduly stripped them of their constitutional rights to make ordinary welfare and medical decisions for their child. The Supreme Court delivered a joint principal judgment; this separate concurring opinion by Judge Baker focuses on the scope and constitutional dimensions of minor wardship.

Legal Issues Presented

Whether the High Court’s wardship jurisdiction over minors permits flexible, limited orders directed solely to the protection of welfare interests, rather than an all-encompassing transfer of parental decision-making power to the court.
Whether the order made on 15 September 2020 taking the Minor “into wardship for all purposes” was premature and constitutionally disproportionate in light of the Parents’ rights and the Minor’s entitlement to parental decision-making.
The doctrinal foundation of wardship: parens patriae, Crown prerogative, or the constitutional obligation under Article 40.3.2 (and Article 42A) to vindicate personal rights of a child.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
AM v. Health Service Executive [2019] IESC 3; [2019] 2 IR 115	Historical evolution and discretionary nature of wardship jurisdiction.	Relied upon for the proposition that admission to wardship is discretionary and must be read in light of constitutional and ECHR rights.
Eastern Health Board v. M.K. [1999] 2 IR 99	Wardship is “special/unique”; due process requirements.	Cited to emphasise that fair procedures are essential before a minor is taken into wardship.
AC v. Cork University Hospital [2019] IESC 73	Procedural safeguards and the ability to make protective orders even where the wardship order is flawed.	Used to show that once wardship proceedings are commenced the court may make protective orders.
F.D. (An Infant) v. Registrar of Wards of Court [2004] 3 IR 95	Sending out of a medical visitor is a judicial act within wardship.	Quoted to contrast minor wardship procedure with adult capacity inquiries.
De Manneville v. De Manneville (1804) 10 Ves 52	Early articulation of parens patriae jurisdiction.	Referenced as historical foundation for the court’s protective role over those unable to care for themselves.
Wellesley v. Duke of Beaufort (1827) 2 Russ 1	Necessity of conscientious exercise of wardship powers.	Invoked to illustrate equitable origins demanding careful, proportionate intervention.
Re a Ward of Court (Withholding Medical Treatment) (No. 2) [1996] 2 IR 79	Source of jurisdiction to direct medical treatment.	Shows earlier reliance on parens patriae to authorise medical decisions for incapable persons.
J.M. v. Board of Management of St. Vincent’s Hospital [2003] 1 IR 321	Use of wardship (or parens patriae) in urgent medical contexts.	Highlighted to question continued reliance on Crown prerogative post-Constitution.
O’Farrell v. Governor of Portlaoise Prison [2016] IESC 37; [2016] 3 IR 619	Wardship seen as implementing constitutional duty to protect child welfare.	Cited for the view that modern jurisdiction rests on constitutional, not prerogative, foundations.
N. v. Health Service Executive [2006] IESC 60; [2006] 4 IR 374	Alternative characterisation of wardship as constitutional obligation.	Referenced to support constitutional basis for protective jurisdiction over children.
Byrne v. Ireland [1972] IR 241; Webb v. Ireland [1988] IR 353; Howard v. Commissioners of Public Works [1994] 1 IR 101	Questioning survival of royal prerogatives under modern Constitution.	Used to underscore doubts about parens patriae as a surviving prerogative.
Re D [1987] IR 449	Wardship power derives from Article 40.3.2 (constitutional protection of citizens).	Preferred by Judge Baker as the correct foundation of jurisdiction.
J.S. (An Infant) [1976] 111 ILTR 146	Typical invocation of wardship to protect a minor’s property.	Illustrates ordinary scope of minor wardship.
Re Westby (Minors) (No. 2) [1934] IR 311	Once a minor is a ward, all welfare matters come under court control.	Contrasted with the need for proportionality in modern constitutional context.
State (Bruton) v. MacDermott Fawsitt [1984] IEHC 8	Jurisdiction over minors does not depend on their owning property.	Supports view that welfare, not property, triggers wardship.
Re Edwards (1879) 10 Ch.D 605	Minor wardship distinct from lunacy jurisdiction.	Used to show historical separation between the two jurisdictions.
In re Meades, Minors (1871) 5 I.R. Eq. 98	Court may impose conditions on parental authority without fully displacing it.	Relied upon for the proposition that limited orders can suffice to protect welfare.
Re J.L. (a minor) (High Court, March 1978, unreported)	Wardship directions are broader than those under the Guardianship of Infants Act 1964.	Cited to demonstrate continuing supervisory role of the court even where a guardian is appointed.

Court's Reasoning and Analysis

Judge Baker traced the historical, equitable and constitutional roots of minor wardship, concluding that:

The jurisdiction is equitable, discretionary and must be exercised with flexibility to achieve a just outcome.
While the High Court was correct to invoke wardship because a dispute existed between the Parents and the guardian ad litem over pain-relief and potential life-support treatment, the order went too far by removing all parental autonomy.
Constitutional provisions (Articles 40.3.2 and 42A) require that parental rights and the child’s right to parental decision-making be respected unless strictly necessary; therefore, a proportional, issue-specific order should have been made.
The historical concept of parens patriae grounded in Crown prerogative is less persuasive in a modern republic; the jurisdiction is better understood as an incident of the courts’ constitutional obligation to vindicate personal rights.
Precedent demonstrates that limited or conditional interference with parental authority is possible and preferable. Following In re Meades, conditions could have been imposed on the exercise of parental powers relating only to the contested medical treatment.
The temporal flaw—making the absolute wardship order before the Parents had a full opportunity to address evidence—did not mean some protective order was unjustified; rather, the defect lay in its breadth.

Holding and Implications

ORDER VARIED AND LIMITED

The court affirmed that protective jurisdiction existed but held that the wardship order should be confined to directions on the Minor’s pain-management and any necessary life-support measures, leaving the Parents otherwise in control of routine welfare decisions. The judgment signals that future applications in minor wardship must adopt a proportionate, rights-respecting approach, and that absolute removal of parental autonomy will be scrutinised closely. No new doctrine was created, but the decision underscores the constitutional necessity for narrowly-tailored orders in child-welfare cases.

Click here to read the full judgment

Contains public sector information licensed under the Open Justice Licence v1.0.