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I would like to take this opportunity to make some observations separate from the joint judgment just delivered (�the Principal Judgment�) regarding the jurisdiction of the court in minor wardship matters as for the reasons I will here explain I am of the view that the jurisdiction is capable of being exercised in a flexible and limited way so as to preserve the essential rights and obligations of the parents, of the minor and of the family generally in the constitutional order.
Section 9 of the Courts of Justice Act 1961 transferred to the High Court the jurisdiction in lunacy and minor matters, and had the procedural or jurisdictional function to vest the powers theretofore exercised by the Lord Chancellor.� The section does not create or define the power:� see MacMenamin J. in AM v. Health Service Executive [2019] IESC 3 , [2019] 2 IR 115 at para. 53.� That recent judgment of this Court reviews and analyses the historical evolution of the jurisdiction and it is not necessary to further consider it in this judgment. �
No distinction is made in the section with respect to adult persons or minors, nor does the section define the basis, nature or extent of the jurisdiction, save by reference to the historic powers of the Lord Chancellor.
�Most of the reported cases concern the exercise of the jurisdiction in regard to adult persons who lack capacity, and the authorities concerning the wardship of minors are more concerned with the types of orders that may be made than with the basis of the jurisdiction itself. �There is, as will appear below, some suggestion in the authorities, arising perhaps from its origins in the Courts of Chancery, that the wardship jurisdiction in regard to minors is different from that in regard to adult persons lacking capacity.
The requirements of fairness in the process leading to the taking of a person into wardship were considered by this Court� recently in the judgment of O�Malley J. in AC v. Cork University Hospital [2019] IESC 73 at para 370 et seq. and from that and the earlier authorities can be discerned the proposition that, having regard to the profound consequences for the rights and freedoms of a person, the taking into wardship is not a mere administrative matter, but is rather one made after affording constitutional and fair process.�
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