Court reserves judgement on Enoch Burke's appeal against school injunction
Enoch Burke, centre, leaving the High Court in Dublin with family members. Picture: Sam Boal / RollingNews.ie
Judgement had been reserved by the Court of Appeal (CoA) on Enoch Burke's application to set aside orders directing him to stay away from Wilson’s Hospital School.
Mr Burke claims that the orders, which underpin a finding that he was in contempt of court resulting in his incarceration for 108 days, are unconstitutional, invalid and should be set aside.
His failure to stay away from the school, currently on mid-term break, following his release resulted in the High Court imposing a daily €700 fine until he purges his ongoing contempt.
His appeal centres around a number of orders made by a judge of the High Court last September, in a case he claims centres around his objection to the school's direction to refer to a student at the Co Westmeath school by a different name using the pronoun 'they.'
Representing himself, Mr Burke argued in the appeal that injunctions made by Ms Justice Siobhan Stack and Mr Justice Max Barrett against him are invalid and that the school has not made out a fair or strong case that would justify the granting of the orders against him.
The school has argued the orders granted against Mr Burke are valid, due to his alleged conduct at the school in incidents that occurred at a religious service and subsequent meal at the school last year, and should remain undisturbed.
Mark Connaughton SC for the Co Westmeath School said a decision had been taken by the school last month to dismiss Mr Burke from his teaching position.
Mr Burke, counsel said, has appealed that decision. His appeal is unlikely to be heard before late April, and will be considered by an independent three person panel, counsel added.
Following the conclusion of submissions on Thursday afternoon before the three-judge appellate court comprised of the President of the CoA Mr Justice George Birmingham, Mr Justice John Edwards, and Ms Justice Marie Whelan, the CoA said it would try and deliver its decision on this important issue as soon as it can.
At the outset of Thursday's hearing, the CoA said it was willing to proceed to hear a "limited" appeal after the Co Mayo teacher refused to give the court any undertakings that he would comply with the orders to stay away from the school while the appeal was under consideration.
Mr Justice Birmingham said that any future failure to comply with the orders until a point that a court decided they should be set aside was something the CoA would have to take into consideration, or indeed was something that could have resulted in the court not hearing the appeal.
Mr Justice Birmingham said the teacher had sought to call upon the jurisdiction of the court and expected others to comply with any orders in his favour it may decide to make.
Mr Burke, however, had continued to defy court orders that remain in place, and the evangelical Christian could not "pick and choose which courts orders he wishes to obey.” Mr Burke insisted that the court had to hear his appeal and was not entitled to do otherwise.
After a short deliberation, the CoA said it would consider the appeal but was limiting it to Mr Burke's appeal against Ms Justice Stack's decision to grant the school a temporary injunction, and Mr Justice Barrett's decision to keep the injunction in place pending the final outcome of the High Court action.
The hearing of the full cases between the school and Mr Burke remains pending before the High Court, and is expected to be heard later this year.
There then followed exchanges between Mr Justice Birmingham and Mr Burke as to what the court was going to consider as part of his appeal.
He asked if the court was going to make any findings on decisions made by other judges, Ms Justice Eileen Roberts and Mrs Justice Conor Dignam, in relation to the dispute. Mr Justice Birmingham said it was not up to the court to advise Mr Burke, but said that the court would consider any relevant argument made by the teacher. Mr Justice Birmingham also on a number of occasions invited Mr Burke to "get on" with his appeal.
In his submissions Mr Burke re-iterated that the school's direction to him was to refer to a student, who he accepted was not in his classes but was somebody that he may have had interactions with in the school, by a different name and by the pronoun they.
This direction, he said, was a demand he participate in transgenderism, and was in breach of his constitutional rights to the freedom of religious expression.
Transgenderism, he said, was contrary to all major religions, and his own Christian beliefs, adding that scripture states that there is only male and female.
During his submissions, he was asked questions by the court, including one from Ms Justice Marie Whelan, concerning the rights and wishes of the student at the school who wished to transition and others who may wish to do so in the future.
He said that was not a relevant consideration and that the case before the court was all about the "unlawful and unconstitutional," demand made on him by the school.
When asked about the ethos of the school and its expressed desire to be welcoming to all parties, Mr Burke said that "the school should only be as welcoming as lawfully required."
He also repeated his denials that there was anything he had done which could be catergorised as misconduct that would have merited disciplinary proceedings to be taken against him.
In reply to a question to Mr Justice Birmingham, he said that he had "no regrets" over speaking out at a school function about the demands made on him regarding the student.
He said just before the end of a religious service was an appropriate time and place for him to make remarks. lasting two minutes, outlining his objection to transgenderism.
In reply, Mr Connaughton with Mr Alex White and Rosemary Mallon Bl for the school said Wilson's Hospital School was entitled to take the steps it did in relation to the complaints made about Mr Burke's conduct, particularly at a school service, and his conduct towards the former school principal Niamh McShane at the follow-up dinner.
It is the school's case, counsel said, that Mr Burke had acted "in a highly objectionable manner" and it was entitled to take the steps it did.
Mr Burke, he said, he had been placed on paid administrative leave, without any findings against him.
However, he had failed to comply with the terms of that decision and had continued to attend at the school premises.
It was also the school’s case that Mr Burke did not engage with the school in relation to finding an accommodation to the issues, counsel said, agreeing with the court that the dispute between them escalated.
Counsel added that the High Court judges were entitled to make the orders granted as the school had made out clear and strong cases supporting the granting of the injunctions.
Given the circumstances the CoA should dismiss the appeals, counsel said.
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