Venice Commission of the Council of Europe

Senior Counsel, Member of the Bar of Ireland

EDUCATION

• 1979 - Bachelor of Civil Law degree (hons), University College Dublin
• 1980 - Barrister at Law degree, The Honourable Society of King’s Inns, Dublin
• 1980 - Call to the Irish Bar following graduation from King’s Inns
• 2000 - Call to the Inner Bar
• 2008 - CEDR Accredited Mediator

Ms O’Toole was elected a Bencher of the Honourable Society of Kings Inns, Dublin, in January 2020.   

PROFESSIONAL EXPERIENCE

Ms O’Toole has been in full time practice as a barrister since 1980. She was called to the inner bar, becoming a Senior Counsel in 2000.

Ms O’Toole practices in the areas of Irish Constitutional law, Child and Family Law, Public and Administrative Law, Reproductive Rights and Health Law, Human Rights Law and Capacity and Mental Health Law, acting for both private individuals and State parties.

She has acted in landmark cases in the Irish High Court, Court of Appeal and Supreme Court. She acted as counsel in a number of seminal cases concerning the meaning and effect of the Irish Constitutional provisions concerning abortion rights, the rights of the family in the context of surrogacy, the rights of unmarried parents and children’s rights. She also acted in the seminal Irish case interpreting the Irish Human Rights Act 2003 concerning the manner in which the European Convention on Human Rights [ECHR] is to be applied in Irish law. 

In the area of surrogacy, she acts in both domestic and international surrogacy cases, involving both commercial and altruistic surrogacy, concerning the legal status of the various parties to the surrogacy agreement pursuant to the Irish constitution, and the ECHR.   

She acts in adoption cases and has acted in cases concerning the effect of Irish Constitutional provisions on the rights of the family, the rights of the birth mother, and the right of the child in adoption proceedings. She has acted in cases concerning intercountry adoptions and the legal status of the child and adopters in cases of non-compliance with the Hague Convention on the Protection of Children & Cooperation in Respect of Intercountry Adoptions 1993 [the 1993 Hague Convention]. She has also acted in cases concerning the recognition in Ireland of foreign adoptions, including adoptions based on commercial surrogacy.

She acted in the first Irish case where a Declaration of Incompatibility was made under the Irish European Convention on Human Rights Act 2003, concerning the right of a transsexual to a new birth certificate, which considered both Irish constitutional and ECHR rights in this context and ultimately lead to the introduction of the Gender Recognition legislation in Ireland.

In the area of childcare and children’s rights, she acts in Child Care proceedings, and has acted in cases concerning issues such as child sexual abuse and Munchausen by proxy. She acts in Special Care proceedings concerning civil detention of children who are at high risk of harm, both on behalf of the parents and the Guardian ad Litem acting on behalf of the child concerned. She has acted in proceedings concerning the interpretation of Irish childcare legislation, and its interaction with the provisions of the Irish constitution. 

She has acted in cases concerning cross border placement of children in institutional or foster care in another EU state pursuant to Council Regulation (EC) No 2201/2003 concerning jurisdiction and recognition and enforcement of judgements in matrimonial matters & matters of parental responsibility [Brussels II bis]. She has also acted in proceedings involving the meaning and effect of Article 15 of Brussels II bis, concerning the transfer of childcare cases to another EU jurisdiction better suited to deal with the case.  

She acts in cases concerning divorce and judicial separation, including “ample resources” cases concerning substantial assets and complex financial arrangements, foreign trusts or foundations. She acted in the first case before the Supreme Court concerning the interpretation of the requirement under the Irish Constitution to make “proper provision” for the spouse and children in divorce cases.

She acts in cases of nullity of marriage, recognition of foreign divorce decrees and applications for Financial Relief in Ireland after Foreign Divorce. She also acts in cohabitee cases concerning financial provision.  She acts in private law child custody disputes, including those involving issues of parental alienation and the sexual abuse of children.

She acts in cases pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction [the 1980 Hague Convention] and in child abduction matters pursuant to the provisions of Brussels II bis, involving the interpretation of both the Convention and the Regulation. She also acts in non-Hague child abduction cases. She has acted in cases concerning the return of a child pursuant to the Hague Convention in Respect of Parental Responsibility and Measures for the Protection of Children 1996 [the 1996 Hague Convention].      

She has advised and acted in cases concerning the enforcement of foreign maintenance orders in Ireland including pursuant to EU Council Regulation (EC) No 9/2009 on jurisdiction, applicable law, recognition & enforcement of decisions & cooperation in matters relating to maintenance obligations [the Maintenance Regulation] and the enforcement of maintenance orders made in non- EU states via other international instruments. She has also advised in respect of the enforcement of EU access orders in Ireland.  

She acts in cases concerning the rights of persons detained under the Mental Treatment legislation including cases where there have been challenges to the validity of provisions of that legislation, on the grounds of unconstitutionality or incompatibility with the ECHR.   

She has advised the State on a range of issues: an application before the UN Committee on the Rights of the Child; recognition and enforcement of foreign access orders pursuant to various international instruments; birth registration legislation; adoption and rights of identity; child care legislation; surrogacy, including submissions on same to the European Court of Human Rights on behalf of the State; issues concerning the amendment of the Constitution and the drafting of legislation. Similarly she has advised private parties on a wide range of issues within her areas of expertise.

Examples of cases in which she has acted include the following:

• X v Attorney General [1992] -  A landmark Supreme Court decision concerning abortion rights, interpreting the provision of the 8^th amendment to the Irish Constitution (as it then was) providing for an equal right to life of the foetus and the mother.
• Eastern Health Board v F & Anor [1987] - one of the first contested cases in the Irish High Court concerning allegations of sexual abuse by parents of children in the context of an application to take the children into public care/wardship.  
• Foy v An tÁrd Chláraitheoir [1997] - A landmark case concerning an application by a trans person for a new birth certificate, considering both rights under the Irish constitution and rights pursuant to the ECHR in the context of gender recognition and birth registration. 
• Foy v An tÁrd Chláraitheoir (No 2) [2004] - A second set of proceedings concerning the right of the trans applicant to a new birth certificate, leading to the first Declaration of Incompatibility pursuant to the European Convention on Human Rights Act 2003 in respect of sections of the Civil Registration Act 2004, which did not provide for the issuing of a new birth certificate in such circumstances. This case led to the introduction of gender recognition legislation in Ireland.
• T v T [2000] - A landmark Supreme Court Judgment dealing comprehensively with the interpretation of the constitutional requirement for “proper provision” for spouses following the granting of a decree of divorce.
• Mc D v L & Anor [2004] -  A seminal Supreme Court decision concerning the rights of a sperm donor father to exercise a parental role following a private sperm donation agreement and the right of the same sex couple concerned to family life with the child pursuant to the ECHR. The case established how the Human Rights Act 2003 was to be interpreted and the manner in which the ECHR  is to apply in Irish law.
• N v Health Service Executive [2006] -  An important Supreme Court case on adoption where the natural parents of the child married prior to the adoption of the child and withdrew their consent to the adoption. The case involved the interpretation of the provisions of the Irish constitution concerning the rights of married parents and the children of married parents in the context of adoption.  
• PP v HSE [2007] - An important divisional High Court decision concerning a brain dead pregnant woman and whether the right to life of the foetus pursuant to the 8^th amendment to the Constitution (as it then was)  was engaged, and the extent of the obligation on the hospital to vindicate the right to life of the foetus in the medical circumstances arising.
• CFA v SOL & Ors [2012] - An important High Court judgment concerning whether the High Court, as part of its inherent jurisdiction, has power to continue to review the circumstances of a child who had been in Special Care, post the discharge of a Special Care order under the child care legislation.
• MX v The Health Service Executive [2012] -  A High Court decision on the issue of whether the provisions of the Irish Mental Health Act 2001 concerning the consent to and authorisation of long term medication to a patient suffering from severe and treatment resistant paranoid schizophrenia vindicated the patient’s constitutional rights and those pursuant to the ECHR; whether the statutory provisions failed to reflect the provisions of the UN Convention on the Rights of Persons With Disabilities [UNCRPD];  in circumstances where Ireland had not then ratified the Convention, whether the provisions of the UNCRPD  were directly applicable in Ireland by virtue of the EU being a contracting party to the Convention and the relevant provisions coming within EU competence, and/or whether regard should be had to the provisions of the UNCRPD as informing the interpretation of the Constitution.      
• MR & DR v An tÁrd Chláraitheoir [2014] - A landmark Supreme Court decision concerning a child born through altruistic domestic surrogacy, engaging the issue of whether the genetic mother or the birth mother is entitled to recognition as the lawful mother of the child for birth registration purposes.
• MO’C & BO’C v UDARAS UCHTÁLA NA hÉIREANN [2014] - A High Court case concerning the status of an adoption effected abroad by an Irish couple resident and domiciled in Ireland, where the adoption did not comply with the provisions of the 1993 Hague Convention.
• DE v EB [2015] - An important Court of Appeal judgment in a child abduction case on habitual residence, the intention of the parents and the centre of interest of the child in that context, and the interpretation and application of Brussels II bis.
• Child and Family Agency v McG & JC [2017] - A supreme court judgement which considers whether, following the making of a care order in respect of children in proceedings in which the parents’ constitutional rights to right to fair procedures had been breached, it is open to parents to seek an inquiry into the lawfulness of the children’s detention and an order of habeas corpus. Whether a care order constitutes a deprivation of liberty; whether habeas corpus proceedings are appropriate where there is an issue of welfare of children; whether the childcare legislation provides for orders for the protection of the children following the making of an order of habeas corpus. 
•  M v Minister for Justice [2018] - A landmark Supreme Court decision on the constitutional status of the unborn (foetus) in the context of revoking a deportation order where the potential deportee was a man who was to become the father of an Irish citizen child. The case considered whether the unborn had rights under the Irish constitution independent of the right to life conferred by the Constitution, and whether an unborn was a child for the purpose of the children’s rights provisions of the Irish constitution. The judgment established that the constitutional rights of the foetus were confined to the provisions of the 8^th amendment to the Constitution and did not arise elsewhere in the Constitution, which clarified the law prior to a referendum on the repeal of the 8^th amendment held in 2018.    
• AMQ v KJ [2018] - Court of appeal decision in respect of the return of children to a country which was an accession state to the 1980 Hague Convention, and where it was asserted that the court could make orders pursuant to the 1996 Convention, where the jurisdiction of return was not a member state of the 1996 Convention. The judgement considers the principles applicable, and the weight to be given to the views of the children concerned pursuant to Article 42A of the Constitution.
• In re BS, an Infant; CFA v SS [2019] - A High Court decision interpreting the provisions of the Civil Registration Act and Status of Children Act concerning the registration of birth of a child born to a married woman during a subsisting marriage, where the mother’s husband was not the father of the child, and was unaware of the true circumstances of the birth of the child; the effect of the presumption of paternity and whether the husband  was required to be notified of registration.       
• C v G [2020] - A Court of Appeal judgment in a child abduction case concerning the first case in Ireland on the issue of whether the Covid pandemic constituted grave risk justifying the refusal of a return order in respect of a child.     
• The Adoption Authority of Ireland C & D and the Attorney General [2023] - A landmark Supreme Court decision on the recognition and registration in Ireland of a foreign adoption based on commercial surrogacy, and a consideration of Irish public policy and its application to such a recognition application.
• TG & Anor v Minister for Foreign Affairs & ors [2023] - An important Supreme Court decision concerning the meaning and effect of Irish legislation on citizenship where a child born of surrogacy abroad claimed entitlement to an Irish citizenship through the child’s non-genetically related intended father, who was an Irish citizen living abroad who had obtained a parental order in respect of the child in the foreign jurisdiction.
• Child and Family Agency & B v The Adoption Authority of Ireland and C & Z [2023] -  A Supreme Court judgment concerning a late adoption application (the child was almost 18 years at the date of the application) of a child by a foster parent, considering the constitutional rights of the child pursuant to the Children’s Rights’ amendment provision of the Irish Constitution, the rights of the birth mother under the Irish constitution and the correct interpretation of the Adoption Act 2010.  

MEDIATION

Ms O’Toole is an accredited mediator and has acted as a mediator in private law matters concerning the resolution of financial aspects of family disputes, judicial separation, divorce, and cohabitee matters.   

APPOINTMENTS

In 2007/2008 Ms O’Toole acted as Legal Advisor to the Joint Oireachtas Committee on the Constitutional Amendment on the Rights of the Child.

In 2012 Ms O’Toole was appointed to the Expert Group on the Implementation of the A,B,C v Ireland Judgement of the European Court of Human Rights, where Ireland had been found in breach of the ECHR rights of applicant C in failing to provide accessible and effective procedures to enable her to establish whether she was entitled to a lawful termination under Irish law. The Expert group made a number of recommendations as to procedures that could be established to clarify entitlement to termination of pregnancy, which led to the enactment of legislation. 

In 2018 Ms O’Toole was appointed by the Minister for Justice to conduct a review of cases submitted to the Magdalen Laundry Restorative Justice Ex Gratia Scheme, an administrative scheme set up by the Government to provide financial compensation for women who were survivors of the Magdalen Laundries in Ireland, which compensation was based on the applicant’s length of stay in the Magdalen Laundry. Ms O’Toole reviewed cases where the length of stay of the applicant had been assessed as a shorter period than that claimed by the applicant, examining all available evidence, including evidence that had not been previously considered and allowing the applicants the opportunity to be heard in respect of their claims.

In 2020 Ms O’Toole was appointed to the Child Maintenance Review Group, which was established by government to examine and Report on the treatment of maintenance payments under the social welfare system in Ireland and to make recommendations as to whether a Child Maintenance Agency ought to be established in Ireland to replace the courts in determining maintenance orders for children.     

In 2023 Ms O’Toole was appointed to chair the “Scoping Inquiry into Historical Sexual Abuse in day and boarding Schools run by Religious Orders” which was tasked with, inter alia, consulting survivors of sexual abuse in schools as to what steps they wished to see the government take in response to revelations of sexual abuse in schools run by religious orders, engaging with the religious orders as to the extent of their cooperation with a future inquiry, to critically examine previous inquiries, to analyse the likely extent of future allegation of  historical sexual abuse in schools run by religious orders, to outline and to make recommendations in relation to best practice in the area of child protection in schools, and potential initiatives re restorative justice by the religious orders, and to set out a framework for a government response into historical sexual abuse in day and boarding schools run by religious orders, making recommendations as to the scope/breadth and sequencing of such response, to best meet the outcomes sought by survivors, and to suggest terms of reference for same. The Scoping Inquiry submitted its report to the Minister for Justice in June 2024.     

Ms O’Toole is a regular speaker and contributor to conferences and seminars in the areas of law in which she has expertise, both in Ireland and abroad. She has contributed to ‘Women in Law’ in ‘Law and Gender in Modern Ireland Critique and Reform’ Lynsey Black and Peter Dunne (eds) 2019 Hart Publishing. She was invited to make a submission to the Joint Oireachtas Committee on the Eighth Amendment of the Constitution (concerning the then provisions of the Irish constitution concerning abortion) on recommendations arising from the Citizens' Assembly recommendations in 2017.

VOLUNTEER WORK

Ms O’Toole, as a law student and for a number of years post qualification, was volunteer with Free Legal Aid Centres (FLAC), an independent organisation which, at that time, provided free legal aid and advice, including legal representation, particularly in respect of family law matters, for persons with insufficient means.   

She participates in the Bar of Ireland’s Voluntary Assistance Scheme (VAS) which seeks to meet unmet legal needs in the community through facilitating pro-bono legal services by members of the Bar of Ireland though collaboration with non-governmental organisations and charities. Ms O’Toole as part of this scheme, chaired a group of members of the Irish Bar providing pro bono legal advice to the Clann Project, concerning the historic position under the law in Ireland of children, unmarried parents, in particular unmarried mothers, and adoption law in Ireland; the legal basis (if any) for the detention (or effective detention) of women and children in various state and religious run institutions such as Mother and Baby Homes; applicable criminal law provisions and the general legal position and entitlements of women who were former residents of Mother and Baby Homes in Ireland.

She is a founder member and former chairperson of the Irish Family Lawyers Association.

She received the Irish Women Lawyers Association’s “Irish Woman Lawyer of the Year” award in 2015 (jointly) in recognition of integral leadership in the Lawyers for Yes campaign for Marriage Equality prior to the Irish referendum on marriage equality in 2015.

She is a former member of the Bar Council of Ireland. She was co-opted as a member of the Library Committee of the Bar Council of Ireland in 2023/24.     

She was a member of the Editorial Board of the Bar Review, a publication of the Bar of Ireland between 2000 and 2020.