C.K. v The Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 01 May 2019 |
| Neutral Citation | [2019] IEHC 635 |
| Docket Number | [2019 No. 219 JR] |
| Court | High Court |
| Date | 01 May 2019 |
[2019] IEHC 635
THE HIGH COURT
JUDICIAL REVIEW
MacGrath
[2019 No. 219 JR]
IN THE MATTER OF N.K., A MINOR BORN ON THE [DATE REDACTED] AND IN THE MATTER OF ARTICLE 40.3 AND ARTICLE 41, 42 AND 42A OF THE CONSTITUTION AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964 (AS AMENDED) AND IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED) AND THE INHERENT JURSIDCTION OF THE HIGH COURT
By order of the 10th April, 2019, Simons J. granted the applicant, who is the mother of the child at the centre of this application, N.K., liberty to apply by way of application for judicial review seeking, inter alia, an order of certiorari quashing the decision of the Child and Family Agency Special Care Referral Committee (“the Committee”) of the 29th March, 2019 refusing an application of the social work department of the respondent to seek to place the child in special care. The applicant also seeks a declaration that, what is pleaded as the written rationale for the refusal to place N.K. in special care, were irrational, unreasonable, without foundation and in breach of N.K.'s constitutional right to have his welfare protected. The applicant's initial challenge was to a decision taken by the Committee and recorded in a letter of the 29th March, 2019. The relief sought was expanded upon subsequently, by consent of the parties, to include an order of certiorari challenging the decision of the Committee of the 16th April, 2019, “that the behaviour of [N.K] did not reach the threshold for special care as required under s. 23F(2) because “there is no therapeutic benefit in a readmission to special care” and that N.K. “needed consequences to his behaviour once all efforts were exhausted to engage him”.
Thus, the challenge is now maintained against both decisions, individually and in combination. A further ground of challenge, intimated in correspondence, that the decisions of the Committee were not determinations within the meaning of s. 23F of the Child Care 1991, as amended, (“the Act of 1991”) because the function of making the requisite determination under s. 23F had been devolved by the respondents to the service director for residential care. This was not pursued at the hearing.
The application was supported by the Guardian ad Litem, who is a notice party.
N.K. was born on the [date redacted]. He was placed in voluntary care in November, 2013 when he was aged 11. He remained in foster care between 2013 and June, 2016. In February, 2017 he returned home and a plan for reunification of N.K. with the applicant was put in place. Unfortunately, this was unsuccessful. N.K. was made the subject of various interim care orders which have been renewed from time to time.
On the 8th January, 2018, N.K. was placed in secure care in [location redacted], pursuant to an order made under the inherent jurisdiction of the High Court. On 1st June, 2018 he was made the subject of a special care order application pursuant to an application under the new procedures outlined in Part IVA of the Act of 1991 (which came into force on the 31st December, 2017 having been commenced by S.I. No. 637 of 2017, Childcare (Amendment) Act 2011 (Commencement) Order, 2017). Prior to the commencement of Part IVA, and for the preceding two decades, such cases were considered by the High Court pursuant its inherent jurisdiction. An extension to the special care order was granted on 31st August, 2018.
N.K. remained in special care in a centre known as [location redacted] until discharge by order of the High Court on the 31st January, 2019. The application for discharge was made by the respondent, who, at that time, was satisfied that N.K. no longer met the criteria for special care. The applicant opposed that application, but it was not opposed by the Guardian ad Litem. While in [location redacted], the child was the subject of a number of psychological assessments, including an assessment by Dr Kevin Lambe, Clinical Psychologist (his conclusions are contained in a report of 17th April, 2018) and a further assessment by Dr Peter Misch, Consultant Adolescent Forensic Psychologist (his conclusions are contained in a report of 30th July, 2018).
Subsequent to his discharge from special care N.K. was brought into the care of the respondent by way of interim care order made under s. 17 of the Act of 1991. That order has been extended from time to time. Prior to the making of that order, in December, 2018, N.K. had been transitioned to a step down placement at a another facility. On 31st January, 2019, that centre advised the respondent that it was seeking to end the placement because of N.K.'s stated lack of engagement and use of illicit substances. N.K. did not wish to remain in that placement and wanted to be closer to Dublin. On the 25th March, 2019 the placement came to an end. Following his discharge from this placement, N.K. has been living in a hostel for the homeless, known as [redacted]. This is described as a registered childcare centre and the respondent has informed this court that N.K.'s social work team continue to liaise with the national private placement team in order to assist in the identification of a short to medium term placement for him.
A number of incidents have occurred since January, 2019 which have raised concerns in relation to N.K.'s safety, health and welfare. These incidents include alleged contact with drugs, assaults, theft, public order offences, and a suggested access to weapons. Certain of these incidents occurred during the period that the child was in placement, between December, 2018 and 25th March, 2019. Other incidents are alleged to have occurred since that time, including assault, theft of a bike, exposure to alcohol and concerns regarding self-harm.
Thus, there is a long history of social work involvement with the child and it is common case that he has a high level of needs. The respondent accepts that the child presents a challenge to all professionals and service providers concerned with advancing his best interests, safeguarding his rights and seeking to care for him.
In the light of these concerns, his allocated social work team considered the option of a special care referral at a conference on 6th March, 2019. It was decided that approval should be sought from senior managers regarding such referral. A further conference was held on 14th March, 2019 and service director approval was given to proceed with the special care application. This application was completed by the social work team leader, Ms. Shirley Finnegan, and was submitted for approval on 19th March, 2019. In Ms. Finnegan's letter of referral, which is dated 14th March, 2019, she provided background information and outlined concerns regarding N.K.'s behaviour including involvement in illicit substance abuse and assaults/fight activity. She advised that N.K. required to be discharged from the stepdown facility no later than the 25th March, 2019. She expressed the social work team's concerns regarding the high risk nature of N.K. which resulted in the special care application. Ms. Finnegan relayed the concerns of the team and management of the centre regarding the level of risk that N.K. posed to himself and to others. Attached to the application were several documents and reports. These included a psychological progress report prepared by a psychologist in [location redacted], Ms. Cumiskey. She worked with N.K. since 16th January, 2019 and stated that she had faced grave challenges in terms of N.K.'s availability to engage in meaningful and direct therapeutic work. Ms. Cumiskey recommended that any future therapy should focus on examining N.K.'s core beliefs particularly in relation to violence and criminality; and that he would benefit from continuing to examine how his patterns of learned behaviour were contributing to his poor decision making.
A statutory child in care review, based on a review on 30th January, 2019 and a child in care record care plan of the same date were also attached to the application. Considerable information is contained in this documentation, particularly in relation to N.K.'s family background, his education, his progress while in care, his views (that while he was happy in his placement, he wished to be nearer Dublin), diagnoses of his condition of ADHD and details of his prescribed medication. It was recorded in the care plan review that the placement at that time (he was in care when assessed) was meeting all of his needs. Also attached were medical records concerning injuries sustained in a fight on 12th March, 2019, and a letter from an Garda Síochána dated 11th March, 2019 recording that while N.K. had no previous convictions and no pending charges, he had at that time an outstanding summons for theft which occurred on 24th June, 2018; and a youth referral for an assault which occurred on 22nd February, 2019, in his previous placement facility.
The Child and Family Agency (“CFA”) established the Committee as an expert body which consists of an independent chairperson, members of senior social work management and special care management, and the manager of the national private placement team. The stated reason for such a Committee is to ensure, inter alia, that the decision as to whether a child satisfies the criteria for special care, ultimately depriving the child of his or her liberty for a protracted period of time, are made by an experienced, expert and objective group of professionals with particular experience in the area. As in this case, when a social work team is of the view that the child may require special care, they may refer the case to the Committee....
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