Child and Family Agency v General Solicitor for Minors and Wards of Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 11 October 2024
• Neutral Citation: [2024] IECA 242
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No 2023 289

In the Matter of KK (A Ward of Court)

Between:

The Child and Family Agency

Appellant

and

KK (A Ward of Court Represented by the Committee of the Person, General Solicitor for Minors and Wards of Court)

Respondent

and

Health Service Executive

Notice Party

[2024] IECA 242

Hogan J.

Pilkington J.

O'Moore J.

Court of Appeal Record No 2023 289

AN CHÚIRT ACHOMAIRC

COURT OF APPEAL

Detention orders – Ward of court – Courts (Supplemental Provisions) Act 1961 s. 9 – Appellant seeking a fresh detention order – Whether the High Court was still entitled to make a fresh detention order in respect of a ward of court under s. 9 of the Courts (Supplemental Provisions) Act 1961

Facts: The respondent had mild intellectual disability with a history of self-harming. On 27th July 2021, the High Court (Heslin J) made an order that she be made a ward of court and the General Solicitor was appointed as the committee in respect of the ward. The appellant, the Child and Family Agency, applied by way of notice of motion dated 22nd May 2023 to the High Court seeking a fresh detention order. By that stage, the Assisted Decision-Making (Capacity) Act 2015 had been commenced by ministerial order. The question then arose as to whether the High Court was still entitled to make a fresh detention order in respect of a ward of court under s. 9 of the Courts (Supplemental Provisions) Act 1961. Hyland J, in a reserved judgment delivered on 7th June 2023 ([2023] IEHC 306), held that the Court no longer had a jurisdiction to make a detention order pursuant to s. 9 of the 1961 Act on the basis that this provision was fundamentally inconsistent with the new regime provided for by the 2015 Act. Hyland J did hold, however, that the Court enjoyed an inherent, constitutionally derived jurisdiction to detain the respondent should this be medically warranted, the existence of which jurisdiction had been expressly preserved by s. 4(5) of the 2015 Act. As of that date (i.e., May/June 2023), no order had been made discharging the respondent from wardship pursuant to s. 55(1) of the 2015 Act. The appellant appealed to the Court of Appeal against that conclusion and in this it was supported by the notice party, the Health Service Executive. The conclusion of Hyland J was supported by the General Solicitor. The appellant stated that the High Court erred in concluding that the purpose and aim of the 2015 Act was to bring about the end of wardship. The appellant contended that neither the Long Title or any express provision of the Act or its scheme provide support for that conclusion. The appellant submitted that absent any express objective found within the 2015 Act that it was an error to conclude that the s. 9 jurisdiction was curtailed by implication. The appellant supported that proposition by noting the lack of express repeal or amendment of s. 9 and the fact that the constitutionality of the section was at no point in the proceedings challenged as to its constitutionality.

Held by Hogan J that the treatment of questions of capacity and autonomy are essentially different under the 2015 Act regime. He held that the effect of s. 283 of the Mental Treatment Act 1945 (as applied by s. 1(2) of the Mental Health Act 2001) is that none of the safeguards provided for in the 2001 Act apply to the exercise of the s. 9 detention jurisdiction by the High Court. He held that the continued operation of the s. 9 jurisdiction in detention cases commenced after April 2023 would lead to manifest and indefensible anomalies. He held that Hyland J was correct in the conclusions which she reached that the High Court no longer enjoyed a detention power under the s. 9 jurisdiction in respect of adult wards where the proceedings (as so defined by s. 56 of the 2015 Act) were commenced after the commencement date of the 2015 Act on 23rd April 2023.

Hogan J dismissed the appeal.

Appeal dismissed.

JUDGMENT ofMr. Justice Gerard Hogandelivered the 11 ^th day of October 2024

Part I — Introduction

1 . The enactment of the Assisted Decision-Making (Capacity) Act 2015 (“the 2015 Act”) represents the most fundamental change in the legal regime governing vulnerable persons in well-nigh 150 years. It is clear from s. 7(2) of the 2015 Act that – save for certain transitional provisions – the principal pre-existing statute, the Lunacy Regulation (Ireland) Act 1871 (“the 1871 Act”), has been repealed. So far as material to this appeal, the relevant provisions of the 2015 Act were commenced with effect from 26th April 2023: see Assisted Decision-Making (Capacity) Act 2015 (Commencement) Order (SI No. 192 of 2023).

2 . The principal question in this appeal is whether another earlier cornerstone of the pre-existing wardship regime – namely, the detention power in respect of wardship as provided for in s. 9 of the Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”) – has been impliedly repealed or otherwise rendered inoperative by the commencement of the 2015 Act. As we shall see, this appeal presents difficult and unusual questions of statutory interpretation regarding the congruity and compatibility of the pre-existing jurisdiction in respect of such wardship detention order with the operation of the new provisions of the 2015 Act.

3 . Admittedly, s. 9 of the 1961 Act does not in terms provide for the detention of any person. As we shall see, however, s. 9 carries over the pre-existing wardship jurisdiction and it references the pre-1961 statutory jurisdictions (which I shall presently describe) and its corpus of case-law and practice. It is not disputed but that this pre-existing jurisdiction extended to making an order providing for the detention of a ward where this was objectively warranted.

4 . The issue arises in the following way. The appeal ostensibly concerns the case of Ms. KK, a young person who is now 24 years of age. She has mild intellectual disability with a history of self-harming. While detention orders had previously been made in respect of her, since July 2021 Ms. KK had been placed in a remote rural location where the risk of absconding had been thought to be less. On 27 ^th July 2021 the High Court (Heslin J.) made an order that she be made a ward of court and the General Solicitor was appointed as the committee in respect of the ward.

5 . A few months later a man whom Ms. KK had met online attended at her placement location. It appears that this individual was aggressive, and staff were required to call Gardaí. As a result of all of this, on 27 ^th December 2021 Ms. KK was detained at an approved centre for a nine-day period pursuant to the provisions of the Mental Health Act 2001.

6 . At various stages during the calendar year 2022, Ms. KK was further detained pursuant to a variety of High Court orders. These applications were supported by uncontested psychiatric evidence. However, on 7 ^th February 2023 a further application to the High Court for a detention order was adjourned in order to allow the appropriate medical evidence to be furnished. When no such evidence was forthcoming the applications for the orders duly lapsed. When the relevant consultant psychiatrist prepared a report in April 2023 in which it was concluded that these detention orders should be continued, the Child and Family Agency (“the CFA”) duly made a fresh application by way of notice of motion dated 22 ^nd May 2023 to the High Court seeking orders to this effect.

7 . By this stage, however, the 2015 Act had been commenced by ministerial order. The question then arose as to whether the High Court was still entitled to make a fresh detention order in respect of a ward of court under s. 9 of the 1961 Act. It is important to stress that this appeal concerns only the question of the survival of the s. 9 detention powers. It is unnecessary to consider whether in any other respects the s. 9 powers have survived post-April 2023 or what other s. 9 derived powers might now be exercised by the High Court.

8 . In a reserved judgment delivered on 7 ^th June 2023, Child and Family Agency v. KK[2023] IEHC 306, Hyland J. held that the High Court no longer had a jurisdiction to make a detention order pursuant to s. 9 of the 1961 Act on the basis that this provision was fundamentally inconsistent with the new regime provided for by the 2015 Act. She did hold, however, that the Court enjoyed an inherent, constitutionally derived jurisdiction to detain Ms. KK should this be medically warranted, the existence of which jurisdiction had been expressly preserved by s. 4(5) of the 2015 Act. As of that date (i.e., May/June 2023), however, no order had been made discharging Ms. KK from wardship pursuant to s. 55(1) of the 2015 Act.

9 . The CFA have now appealed to this Court against this conclusion and in this it is supported by the Health Service Executive (“HSE”). The conclusion of Hyland J. is, however, supported by the General Solicitor. When this appeal originally came before this Court on 29 ^th January 2024, it transpired that Ms. KK had just been discharged from wardship by order of Dignam J. in the High Court which was made on 29 ^th January 2024. This then raised the question of whether the appeal was moot and, if so, whether the Court should proceed to hear this appeal. (I propose to consider this question presently.)

10 . At that point we directed that that the Attorney General should be put on notice of the appeal. The Attorney General then decided to participate qua notice party, albeit that he has adopted a neutral position insofar as any issue concerned the factual circumstances of Ms. KK herself. The Attorney General nonetheless submits that Hyland J. was correct in the conclusions which she reached. We also directed that Ms. KK be put on notice of of the appeal. This matter was then mentioned before Haughton J. on 22 ^nd March 2024 where it was confirmed that neither Ms. KK not her decision-making representative wished to...