KK

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 06 October 2023
• Neutral Citation: [2023] IEHC 565
• Court: High Court
• Docket Number: Record No: WOC10692

In the Matter of KK

[2023] IEHC 565

Record No: WOC10692

THE HIGH COURT

WARDS OF COURT

JUDGMENT of Ms. Justice Niamh Hyland delivered on 6 October 2023

Introduction

1 This judgment follows on from my decision in the above matter of 7 June 2023, where I considered whether there continues to be a power inherent in a Wardship Court under s.9 of the Courts (Supplemental Provisions) Act 1961 (‘the 1961 Act’) and/or s.56(3) of the Assisted Decision-Making (Capacity) Act 2015 (“ADMCA”) to make new detention orders in respect of existing wards post the commencement of the ADMCA. Having concluded that no such power exists, I referred to the inherent jurisdiction of the High Court to detain persons lacking capacity, and indicated that I would adjourn the case for further submissions to be made on the appropriateness of making the detention type Order sought in relation to KK under the inherent jurisdiction power. My judgment acknowledged that the inherent jurisdiction to detain persons lacking capacity had not been affected by the commencement of the ADMCA, in particular having regard to s.4(5) of the ADMCA. This section provides that nothing in the Act affects the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity. Nonetheless, the ADMCA has impacted the manner in which a court will evaluate an application for detention pursuant to the inherent jurisdiction and I discuss that impact below.

2 After the hearing but shortly before that judgment was delivered, Rules of Court were adopted providing, inter alia for applications to be made under the inherent jurisdiction to the Central Office (see Order 67A, Rule 19, as inserted by S.I. No. 261 of 2023 ( Assisted Decision-Making (Capacity) Act 2015, 15 May 2023). That rule came into force on 25 May 2023. It specifies that any application to the Court, otherwise than under the ADMCA, in which relief is sought concerning the care, treatment or detention of a person who is alleged to lack capacity may be made by originating Notice of Motion grounded on affidavit. The Court is given the most general power to make directions and orders as may appear convenient for the determination of the matter in a just, expeditious and cost minimising fashion.

3 On 2 October 2023, a Practice Direction on Inherent Jurisdiction (Capacity) Applications HC123, 2 October 2023, was adopted setting out the procedural requirements in relation to such applications. It emphasises that such applications are entirely distinct from wardship applications and should be made through the Central Office and not the Office of the Wards of Court by way of an originating Notice of Motion.

4 The current application, brought by way of Notice of Motion of 22 May 2023 prior to the entry into force of Order 67A Rule 19, is one made through the Office of the Wards of Court in the context of the wardship of KK. The applicant cannot therefore pursue the reliefs sought under the inherent jurisdiction in these proceedings and must start again by issuing a Notice of Motion in the Central Office. I therefore refuse the reliefs sought. Nonetheless, assuming that the applicant intends to make the application through the inherent jurisdiction procedural route, it is appropriate to specify the types of proofs that are likely to be required in any such application, as well as some specific issues that will, in my view, require to be identified in the instant case, namely medical evidence from a party other than the CFA in respect of the capacity of KK to enter safe romantic and sexual relations and, assuming KK lacks such capacity, medical evidence from a party other than the CFA whether the proposed detention type restrictions are required to vindicate her constitutional rights. KK remains a Ward of Court for the time being i.e., until a discharge application is moved, and the General Solicitor acts as her Committee. It may be appropriate that the additional medical evidence referred to above will be provided by her Committee but that is ultimately a matter for the parties to any application.

5 To recap, the nature of the Orders sought by the Child and Family Agency (“CFA”) are as follows: (i) an Order directing and/or permitting An Garda Síochána to search for, arrest without warrant, and detain in their custody, KK for a reasonable period of time and deliver and/or return as soon as practicable KK to her placement in the event that she is at large and/or has absconded and/or has failed to return from leave (ii) an Order that, if deemed appropriate in KK's best interests by a Consultant Psychiatrist, KK may be admitted to and detained at an Approved Centre as defined under the Mental Health Act 2001 for the purposes of providing care and therapeutic services to KK (iii) an Order that, if deemed clinically appropriate in KK's best interests by a registered medical practitioner, KK may be admitted to and detained at an Acute Hospital for the purposes of providing care and therapeutic services there.

Factual background

6 As identified in my judgment of 7 June 2023, KK was 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 could be returned to her placement, being a house supervised by carers in the event she absconded. She was taken into wardship on 27 July 2020 by Heslin J. who appointed the General Solicitor for Minors and Wards of Court as the Committee of the Person and Estate. The detention orders were continued.

7 KK has been in her current placement in Offaly since July 2021 and at that time, there was a reduced level of concern as regards her potential to abscond and as such the detention orders were discharged. In December 2021, a man KK met online attended at her placement, she had sexual relations with him, and it was determined that she was put at risk. The man displayed aggressive behaviour and staff had to resort to calling the Gardaí to remove him.

8 Subsequently, in June 2022 the CFA secured a further detention Order and additional orders restricting KK's access to her smartphone and social media, predicated on the medical evidence of Dr. M. These orders were extended in October 2022 following an application identifying further medical evidence from Dr. M of 15 August 2022. The matter returned before the Court on 7 February 2023, and I adjourned the application for evidence to ground a further extension of the detention orders, as no medical evidence was presented with the initial application. On 28 February 2023, despite the adjournment, no medical evidence was provided to justify the restrictions sought. In the circumstances, an extension of the orders was refused.

9 On 21 April 2023, Dr. M provided a report recommending that detention orders and those restricting access to smartphones and social media be put in place. She summarised matters as follows:

“[KK] does not have the capacity to meet her own needs and make informed decisions about herself. Her judgment is poor and she continues to require support in most areas of her life. This includes the activities of daily living such as managing money, cooking and cleaning. She has made limited progress in acquiring these skills in the past year. She does not have the capacity to live independently. She has no insight into her limitations or vulnerabilities. She is functioning at a lower level than her chronological age of 20 and in her behaviours and attitudes is more like a 12/13 year old. She does not have the capacity to take up paid employment. She does not have the capacity to enter safe platonic and sexual relationships. She has shown by her behaviour in the recent past that her judgement in this area is poor, that she lacks awareness of the need to keep herself safe and she is vulnerable as a result.

… She remains vulnerable to exploitation as she has a naïve and unrealistic view of the world and does not appreciate the risks involved using social media…. She does not have the ability to regulate her emotions and continues to present challenges to staff when she becomes aroused. She is still impulsive and unpredictable…. I agree the current order allowing KK to be returned to [residential placement] if she absconds is required. I agree the current order allowing KK to be treated in an approved centre if necessary is required”.

10 A supplemental Notice of Motion for 25 May 2023 was filed, grounded on a supplemental affidavit of Sarah O'Connell, after-care worker of the CFA. The CFA sought an Order permitting the manager of the residential placement to regulate and if necessary, terminate the ward's use of the landline telephone at the placement to ensure the ward was not exposed to exploitation by any third-party. I granted that relief at the hearing on 25 May 2023.

11 The affidavit of Ms. O'Connell is of some importance in the context of the reliefs that I am now considering. She refers to KK's borderline mild intellectual disability, her low adaptive functioning and her history of self-harm. She refers to the incidents in December 2021 where KK invited a man whom she had met on social media to attend at the residential placement. At paragraph 6 Ms. O'Connell avers as follows:

“I was notified last week that KK has recently been discovered to be using land lines own in [residential placement] to contact Mr K. … Staff's challenging of KK on this resulted in an incident where KK broke a car window when staff plugged out the land lines at the mains switch. There is a noticeable increase in KK trying to make contact with Mr K. She has asked family to collect him so she could see him when visiting in Cork. When they refused she...