KK
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 07 June 2023 |
| Neutral Citation | [2023] IEHC 306 |
| Court | High Court |
| Docket Number | Record No: WOC10692 |
[2023] IEHC 306
Record No: WOC10692
THE HIGH COURT
WARDS OF COURT
Ward of Court – Detention orders – Inherent jurisdiction – Child and Family Agency seeking detention orders – Whether detention orders can be made under the inherent jurisdiction of the High Court
Facts: A young woman was made a Ward of Court on 27 July 2020. The Child and Family Agency (CFA) sought detention orders that would ensure she was returned to her placement by the Gardaí if she absconded or failed to return from leave. The CFA and the Health Service Executive suggested the High Court (Hyland J) could make a detention order under s. 56(2) of the Assisted Decision-Making (Capacity) Act 2015 (the ADMCA), a transitional provision that continued the jurisdiction of the Wardship Court under s. 9 of the Courts (Supplemental Provisions) Act 1961. The General Solicitor disagreed, suggesting any detention order could only be made on the basis of the inherent jurisdiction of the High Court.
Held by Hyland J that the acknowledged power of the Wardship Court to make new detention orders under s. 9 has not survived the commencement of the ADMCA but that such an order can, in principle, be made under the inherent jurisdiction of the High Court. Pending further submissions, she left over the question whether such a detention order should be made in the particular circumstances of the case. She held that the jurisdiction vested by s. 9 must be read in the light of the ADMCA; ss. 107 and 108 of Part 10 introduce important new rules in relation to the detention of Wards of Court, inter alia by requiring a review of all wards detained by order of a Wardship Court as soon as possible from the commencement of the ADMCA and by providing for the detention of wards with mental disorders under certain conditions and the discharge from detention of wards that no longer have a mental disorder indicating a clear legislative intention on the part of the Oireachtas to significantly alter the regime pursuant to which Wards of Court are detained. She held that the jurisdiction vested under s. 9 must be treated as having been altered by Part 10, given the changes effected by that Part to existing detention orders. She held that the difficulty presented by the application was that ss. 107 and 108 only apply to detention orders that were in existence on the date the ADMCA was commenced i.e. 26 April 2023; therefore, were she to make the detention order sought, the woman could not have her detention reviewed under the new regime. Hyland J found that there is no suggestion in the ADMCA that the legislature intended to treat wards the subject of detention orders made after the commencement of the Act less favourably than wards who were the subject of detention orders when the Act was commenced by excluding them from review under the new detention regime. She held that s. 9(1) does not itself explicitly provide for the making of detention orders in relation to Wards of Court, but only vests a jurisdiction in lunacy previously exercised by the Lord Chancellor and the Lord Chief Justice of Ireland and the High Court without specifying the nature of that jurisdiction. She held that s. 56(2) – the transitional provision that continues the s. 9 jurisdiction pending the discharge of a person from wardship altogether – does not describe the jurisdiction of the Wardship Court under s. 9; nothing in s.56(2) precludes the possibility of the s.9 jurisdiction being affected by the ADMCA. She noted that the s. 9(1) jurisdiction derives from Article 40.3.2 of the Constitution i.e. where action is necessary to defend and vindicate the personal rights of incapacitated citizens; that same constitutional imperative can be achieved through the inherent jurisdiction of the High Court to make orders in respect of persons lacking capacity in order to vindicate their personal rights, including detention orders where necessary. She noted that the continuation of this jurisdiction is expressly confirmed in s. 4(5) of the ADMCA.
Hyland J held that the reference in s. 56(2) to s. 9 means s. 9 as read in the light of the ADMCA, and as so read, s. 9 no longer includes a power to make detention orders in respect of existing wards post the commencement of the Act.
Proceedings adjourned.
JUDGMENT of Ms. Justice Niamh Hyland delivered on 7 June 2023
This case concerns a young woman who was made a Ward of Court on 27 July 2020. The Child and Family Agency (“CFA”) are seeking detention orders that would ensure she is returned to her placement by the Gardaí if she absconds or fails to return from leave. This application raises the net but important question as to whether a detention Order can be made for an existing Ward of Court post the commencement of the Assisted Decision-Making (Capacity) Act 2015 (the “ADMCA”) and, if so, the appropriate legal basis for same. Detention of a person impacts very significantly on the right to liberty, even where the detention is for the purpose of protecting the constitutional rights of the person, as in the present case. The fact that here the power is conditional i.e., it only comes into operation if certain events take place, for example if KK absconds or does not return from permitted leave, does not alter the fact that it prevents KK from exercising her power to reside where she wishes. I should emphasise that this decision is only about the jurisdiction to make detention orders under s.9 and does not concern orders about matters other than detention.
The CFA and the HSE suggest I can make a detention order under s.56(2) of the ADMCA, a transitional provision that continues the jurisdiction of the Wardship Court under s.9 of the Courts (Supplemental Provisions) Act 1961. The General Solicitor disagrees, suggesting any detention Order can only be made on the basis of the inherent jurisdiction of the High Court. I have come to the conclusion that the acknowledged power of the Wardship Court to make new detention orders under s.9 has not survived the commencement of the ADMCA but that such an Order can, in principle, be made under the inherent jurisdiction of the High Court. Pending further submissions, I have left over the question whether such a detention Order should be made in the particular circumstances of this case.
My reasons are, in summary, as follows. The jurisdiction vested by s.9 must be read in the light of the ADMCA, in particular Part 10 of that Act. Sections 107 and 108 of Part 10 introduce important new rules in relation to the detention of Wards of Court, inter alia by requiring a review of all wards detained by Order of a Wardship Court as soon as possible from the commencement of the ADMCA and by providing for the detention of wards with mental disorders under certain conditions and the discharge from detention of wards that no longer have a mental disorder. They indicate a clear legislative intention on the part of the Oireachtas to significantly alter the regime pursuant to which Wards of Court are detained. The jurisdiction vested under s.9 must be treated as having been altered by Part 10, given the changes effected by that Part to existing detention orders. (Part 10 operates only as long as persons are detained pursuant to an Order of a Wardship Court. Once a person is discharged from wardship, as all wards except certain wards under 18 must be within 3 years of the commencement of the ADMCA, they will no longer be subject to the jurisdiction of the Wardship Court and can no longer be detained by that Court).
The difficulty presented by this application is that Sections 107 and 108 only apply to detention orders that were in existence on the date the ADMCA was commenced i.e. 26 April 2023. Therefore, were I to make the detention Order sought, KK could not have her detention reviewed under the new regime. There is no suggestion in the ADMCA that the legislature intended to treat wards the subject of detention orders made after the commencement of the Act less favourably than wards who were the subject of detention orders when the Act was commenced by excluding them from review under the new detention regime.
In addition, s.9(1) does not itself explicitly provide for the making of detention orders in relation to Wards of Court, but only vests a jurisdiction in lunacy previously exercised by the Lord Chancellor and the Lord Chief Justice of Ireland and the High Court without specifying the nature of that jurisdiction. Equally, s.56(2) — the transitional provision that continues the s.9 jurisdiction pending the discharge of a person from wardship altogether – does not describe the jurisdiction of the Wardship Court under s.9. Nothing in s.56(2) precludes the possibility of the s.9 jurisdiction being affected by the ADMCA.
Moreover, the s.9(1) jurisdiction now derives from Article 40.3.2 of the Constitution i.e. where action is necessary to defend and vindicate the personal rights of incapacitated citizens. That same constitutional imperative can be achieved through the inherent jurisdiction of the High Court to make orders in respect of persons lacking capacity in order to vindicate their personal rights, including detention orders where necessary. The continuation of this jurisdiction is expressly confirmed in s.4(5) of the ADMCA.
In those circumstances, the reference in s.56(2) to s.9 means s.9 as read in the light of the ADMCA, and as so read, s.9 no longer includes a power to make detention orders in respect of existing wards post the commencement of the Act.
KK is a Ward of Court born in 2003. She was brought into the care of the CFA shortly after she was born. KK presents with a borderline mild intellectual disability, low adaptive functioning, and a history of self-harm. Before she turned 18, wardship proceedings were instituted and interim detention orders were secured providing, inter alia, that she...
To continue reading
Request your trial