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Enoch Burke Leah Farrell/
Enoch Burke

Judgement reserved in Enoch Burke appeal against orders requiring him to stay away from school

Burke told the Court of Appeal today that “the only thing the State is bound to honour by the constitution is religion”.

LAST UPDATE | 16 Feb 2023

THE COURT OF Appeal has reserved its decision in Enoch Burke’s application to set aside orders directing him to stay away from Wilson Hospital’s school following his paid suspension from his teaching post.

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, invalids 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 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 pronoun ‘they.’

The evangelical Christian, who represented himself in court, was accompanied by his sister, two brothers and parents Martina and Sean Burke.

The Court of Appeal agreed today to hear Burke’s appeal against High Court injunctions banning him from attending Wilson’s Hospital School, despite concerns about whether he would continue to be in contempt of court.

The court has heard Burke argue that he has breached “no valid” court order, and also that the order was “manifestly unconstitutional and unlawful”.

The school has argued the orders granted against 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 Burke from his teaching position.

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 this afternoon before the three judge appellate court comprised of the President of the Court of Appeal Mr Justice George Birmingham, Mr Justice John Edwards and Ms Justice Marie Whelan, the court said it would try and deliver its decision on this important issue as soon as it can.

This morning, the court said it had concerns about hearing an appeal if Burke intended to continue to be in contempt, but decided to continue to hear the case.

President of the Court of Appeal, Justice George Birmingham, said it was “a matter of some importance” whether Burke intended to continue his “ongoing” contempt by attending the school despite a High Court order against it.

He said that historically, when someone was in contempt, they did not have access to the courts unless they wanted to purge their contempt.

“Our concern is, you’re saying to this court, I want to invoke your jurisdiction,” he said, adding that the court was worried he would “pick and choose what orders of the court you abide by”.

“We’re very willing to embark on an appeal, notwithstanding what has concerned to date, but we have concerns as to what will happen in the future and we have concerns as to what will happen while the matter is before the court,” he said.

Judge Birmingham said the court “accepts fully” that someone in contempt has a right to appeal the finding that they are in contempt, if there is a factual or legal issue.

“They have of course a right to come before this court and no-one would argue otherwise,” he said, but he raised concerns about someone invoking the authority of the court but then not complying with its jurisdiction.

Birmingham said the court would hear Burke’s appeal against the decisions of High Court judges Ms Justice Siobhan Stack and Mr Justice Max Barrett, “notwithstanding the fact that we were unimpressed” that Burke did not indicate whether he would continue to be in contempt of court.

In his appeal to the court, Burke said he could not accept “transgenderism” due to his Christian beliefs, after teachers at the school were asked to address a student by “a new name and the ‘they’ pronoun”.

This was indicated in an email from the school principal sent in May 2022.

The German and history teacher also confirmed to the court that the student in question did not attend his classes, but argued that all teachers had some level of interaction with all students, either in corridors or acting as a substitute teacher.

Mr Justice Birmingham asked Burke: “What were you offering by way of accommodation?”

Burke responded that a demand had been “forcefully and clearly made” in the email and that that was his “immediate concern”.

He said it was important for a teacher “to model the behaviour that you wish students to emulate”.

“That would extend to not participating or condoning unlawful requests. That is exactly what happened,” he said.

“(The email said) ‘It is expected of you’. There was no accommodation of me there judge, that is certain.”

When asked by Ms Justice Maire Whelan how he imagined interacting with the student in question, Burke said: “The question before the court doesn’t involve that.”

When asked by Justice Birmingham whether Burke’s position made it “an impossibility” for the school to welcome a request by the student and their parents, Burke responded: “A school is not entitled to be more welcoming than the law permits.”

Burke also argued that the constitution “guarantees” a right to “respect and honour” religion.

“The only thing the State is bound to honour by the constitution is religion,” he told the court.

When asked by Justice John Edwards whether there was a more appropriate setting than at a religious service “to make a public spectacle and to confront the principal in the way in which she was confronted”, Burke responded that “under no circumstances could it be portrayed as gross misconduct”.

The legal team for Wilson’s Hospital School told the court that “Mr Burke does not listen”; the court will hear their argument in the afternoon.

The court also heard there was a school midterm break this week; Burke did not indicate to the court whether he intended to continue to be in contempt of court by attending Wilson’s Hospital School.

Additional reporting from Aodhan O’Faolain

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