Cfa v M.O'L.

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Faherty
• Judgment Date: 28 May 2019
• Neutral Citation: [2019] IEHC 781
• Date: 28 May 2019
• Docket Number: [2018 No. 194 MCA]

[2019] IEHC 781

THE HIGH COURT

SPECIAL CARE

Justice Faherty

[2018 No. 194 MCA]

IN THE MATTER OF S., A CHILD

BETWEEN

CHILD AND FAMILY AGENCY

APPLICANT

AND

M. O'L.

FIRST RESPONDENT

AND

M.M.

SECOND RESPONDENT

Special care order – Expiration – Jurisdiction – Applicant asking the High Court to find that where an interim special care order or special care order expires or is discharged the role of the High Court should cease save in the most exceptional circumstances – Whether the High Court had jurisdiction to review the child’s case post the expiry of the special care order

Facts: A child born on 30th December, 2001 was the subject of an interim special care order in accordance with s. 23L of the Child Care Act 1991 on 28th March, 2018. A full special care order was made on 1st May, 2018. The second respondent was appointed to act as guardian ad litem for the child from the outset of the special care proceedings. The full special care order in respect of the child expired on 31st July, 2018. In essence, the issue for determination in these proceedings was whether the High Court has jurisdiction to review the child’s case post the expiry of the special care order on 31st July, 2018. The second respondent contended the Court has the jurisdiction to make orders and give directions post the discharge or expiry of a special care order and has the power to, in effect, retain the guardian appointed under the special care order for this purpose. The first respondent, the child’s mother, supported the position being adopted by the second respondent. The applicant, the Child and Family Agency, asked the Court to find that where an interim special care order or special care order made under Part IV A of the 1991 Act expires or is discharged the role of the High Court should cease save in the most exceptional circumstances.

Held by Faherty J that the legislature had not spoken on the issue of whether the High Court has the power to review a minor’s case once a special care order is discharged or has expired. Faherty J noted that prior to the enactment of Part IVA of the 1991 Act the Court had such power. Faherty J was satisfied that the Court retains such power of review. While the Court acknowledged the dictum of MacMenamin J as set out in para. 89 of A.M. v. HSE [2019] IESC 3, it remained the case that the legislature did not address in Part IVA of the 1991 Act the power of the High Court to review matters post the discharge or expiry of a special care order; if not addressed, then the law provides that it was not intended by the legislature to interfere with the High Court’s inherent jurisdiction to review a minor’s case post the discharge or expiry of a special care order. Accordingly, in Faherty J’s view, there was no question that the High Court when exercising such review as may be necessary post the discharge/expiry of a special care order is exercising the type of shadow jurisdiction cautioned against in the jurisprudence quoted in this judgment. This was so because, to Faherty J’s mind, the High Court’s review jurisdiction has not been “expressly and completely delineated” by the provisions of the 1991 Act.

The Court found it had the power to review the circumstances of the child post the discharge or expiry of the special care order.

Judgment approved.

JUDGMENT of Ms. Justice Faherty delivered on the 28th day of May, 2019

1 This application relates to a child S. a minor born on 30th December, 2001 who was the subject of an interim special care order in accordance with s. 23L of the Child Care Act, 1991 (“the 1991 Act”) on 28th March, 2018. A full special care order was made on 1st May, 2018. The second respondent was appointed to act as guardian ad litem for S. from the outset of the special care proceedings.

2 The full special care order in respect of S. expired on 31st July, 2018.

The relevant legal framework

3 The statutory framework relating to special care orders for children, which involves intervention to provide secure therapeutic care, was introduced by the Child Care (Amendment) Act, 2011 which substituted and inserted Part IV A into the 1991 Act. Part IV A was commenced by Statutory Instrument No. 637 of 2017 Child Care (Amendment) Act 2011 (Commencement) Order 2017 on 31st December, 2017. Prior to the latter date, for the proceeding twenty years or so, such cases were dealt with pursuant to the inherent jurisdiction of the High Court. Essentially, Part IV A established a statutory regime for the admission of children to special care.

4 The statutory regime authorises the detention of children in special care units where the child's welfare warrants special care, as opposed to care with relatives, foster parents or residential care. Part IV A provides for two types of orders, special care orders and interim special care orders, vesting jurisdiction to make such orders in the High Court. Part IV A provides for the effect, duration and obligations arising from an interim special care order and a special care order such as, inter alia, specific proofs, appointment of a guardian ad litem, relationship with criminal proceedings, consultation with various parties prior to the application being made, the provision of special care units, and reviews by the High Court.

5 It is apposite at this juncture to set the relevant provisions of Part IVA of the 1991 Act.

6 Section 23B of Part IVA, in relevant part, provides:

“(1) The [Child and Family Agency] shall provide special care to a child in respect of whom a special care order or an interim special care order has been made for the period for which that special care order or interim special care order has effect.

(2) The [Child and Family Agency] shall not detain a child in a special care unit unless the detention is pursuant to, and in accordance with, a special care order or an interim special care order made in respect of that child or the High Court has otherwise ordered …”

7 The statutory prerequisites which must be established by the CFA to the satisfaction of the High Court before it makes a special care order are set forth in s. 23H of the 1991 Act which identifies eight separate criteria in respect of which the High Court must be satisfied prior to making a special care order. Section 23H provides:

“(1) Where the High Court is satisfied that —

(a) the child has attained the age of 11 years,

(b) the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development or welfare,

(c) having regard to that behaviour and risk of harm and the care requirements of the child —

(i) the provision, or the continuation of the provision, by the [Child and Family Agency] to that child of care, other than special care, and

(ii) treatment and mental health services under, and within the meaning of, the Mental Health Act 2001, will not adequately address that behaviour and risk of harm and those care requirements,

(d) having regard to paragraph (c), the child requires special care to adequately address —

(i) that behaviour and risk of harm, and

(ii) those care requirements, which the [Child and Family Agency] cannot provide to the child unless a special care order is made in respect of that child,

(e) the [Child and Family Agency] has carried out the consultation referred to in section 23F (3) or, where the [Child and Family Agency] has not carried out that consultation, the High Court is satisfied that it is in the best interests of the child not to have carried out that consultation having regard to the grounds provided in accordance with section 23F (9),

(f) in respect of the family welfare conference referred to in section 23F (5) —

(i) the [Child and Family Agency] has convened the family welfare conference and the [Child and Family Agency] has had regard to the recommendations notified in accordance with section 12 of the Act of 2001, or

(ii) it is in the best interests of the child that the family welfare conference was not convened having regard to the information and grounds provided in accordance with section 23F (10),

(g) for the purposes of protecting the life, health, safety, development or welfare of the child, the child requires special care, and

(h) having regard to paragraphs (a) to (g), the detention of the child in a special care unit, as it is required for the purpose of providing special care to him or her, is in the best interests of the child, the High Court may make a special care order in respect of that child.

(2) A special care order shall specify the period for which it has effect and that period shall not exceed 3 months from the day on which that order is made unless that period is extended under section 23J …”

8 Section 23I provides for a system of mandatory reviews on notice to be conducted by the High Court in each four-week period during the currency of the special care order in the course of which the Court must consider whether the child continues to require special care.

9 Pursuant to s.23J of the 1991 Act, the High Court may extend the period for which the special care order has effect. No more than two applications to extend a special care order can be made and each may not exceed three months.

10 Where the child's care requirements have changed, and he/she no longer requires special care or is no longer benefitting from special care the High Court may discharge the special care order: Section 23NE.

11 Provision for the making of a special care order in respect of a child who was previously the subject of such an order is set out in s. 23NJ of the 1991 Act:

“(1) Nothing in this Act shall be construed as preventing the [Child and Family Agency] from applying for a special care order or an interim special care order, in respect of a child who has previously been the subject of —

(a) an application for a special care order or an interim special care order,

(b) a special care order, whether or not...