Child and Family Agency v McG and JC

JudgeO'Donnell J.,Mr. Justice John MacMenamin,Mr Justice Peter Charleton,Ms. Justice Dunne
Judgment Date23 February 2017
Neutral Citation[2017] IESC 9
Date23 February 2017
CourtSupreme Court
Docket NumberSupreme Court No: 16/15 [Appeal No. 094/2015] Supreme Court appeal number: 2015 no 000094 High Court record number: 2015 no 1796 SS [2015] IEHC 733 [2017] IESC 000,No. 0617
Child and Family Agency
SMcG (called Joan herein)


JC (called Tomás herein)
S. MacG (Called Joan herein)


J.C. (Called Thomas herein)


JC (habeas corpus in child care)
- and -
The Child and Family Agency

[2017] IESC 9

O'Donnell Donal J.

MacMenamin J.

Charleton J.

Dunne J.

Denham C.J.

O'Donnell Donal J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

O'Malley J.

Supreme Court No: 16/15

[Appeal No. 094/2015]

Supreme Court appeal number: 2015 no 000094

High Court record number: 2015 no 1796 SS

[2015] IEHC 733

[2017] IESC 000


An Chúirt Uachtarach

Care order – Unlawful detention – Habeas corpus – Respondents seeking inquiry into the lawfulness of the detention of their children – Whether Article 40 inquiries should be used in disputes as to the care and custody of children

Facts: The District Court in Dublin, on 29th October 2015, made an interim care order under s. 17 of the Child Care Act 1991, removing the children from a mother and father, the respondents, and placing them under the care of the Child and Family Agency, the appellant. The mother and father had, at the time of the making of the care order, serious drug addiction problems. An application was made to the High Court under Article 40.4.2 of the Constitution to inquire into the lawfulness of the detention of the children. By judgment of Baker J in the High Court of 17th November 2015, it was held that there had been a failure by the District Court to afford the mother and father an opportunity to “fully engage with the evidence.” An order of release from custody under Article 40.4.2 was ordered by the High Court. The Child and Family Agency directly appealed the High Court order by leave of the Supreme Court, challenging the application of any habeas corpus type remedy to child care matters.

Held by MacMenamin J, that the appeal would be dismissed. Considering the case law, and the provisions of s 23 of the 1991 Act, it was clear that the hearing at District Court level was flawed and resulted in a denial of the parents’ constitutional rights. W v. HSE [2014] IEHC 8 and Courier v. The Health Service Executive (Unreported, High Court, 8th November, 2013) distinguished.

O’Donnell J, Clarke J and Dunne J handed down judgments concurring in the dismissal of the appeal. Charleton J dissented on whether the applicants had proven that there had been a failure of jurisdiction by the District Court due to the procedural error, and would have allowed the appeal.

Appeal dismissed.

Judgment of O'Donnell J. delivered the 23rd of February 2017

I hesitate to add a further judgment on this issue in respect of which I am in broad agreement with the approach of MacMenamin and Charleton JJ. An Article 40 inquiry should rarely be used in disputes as to the care and custody of children. In relation to the single issue upon which they differ, I agree with MacMenamin J. that the breach of fair procedures in the District Court hearing on the 29th of October 2015, even if the product of concern as to the safety of the children, and frustration with the difficulty in providing legal aid, was nevertheless a fundamental departure from the requirements of a fair hearing. I also agree that what is and was required from the court system in this case, whether by agreement at District Court level, or by an appropriate order at the level of the Superior Courts, was that the clock should be reset to zero and proceedings should recommence in circumstances where both parents here were fully and properly represented, and did not in any way suffer from the fact that there had been a determination made on the application on the 29th of October 2015.


It is also apparent that the outcome of this appeal has not been to produce a single bright-line rule sought by the appellant. Given the fact therefore that there is no clear-cut legal determination of this appeal, and that there is much good sense in the sensible and sensitive way in which this case was resolved firstly by the learned High Court judge, thereafter by the parties in entering into negotiation, and subsequently under the supervision of the President of the District Court, it might be thought that there is little to be gained from further observations on the legal aspects of this case. However, applications for inquiries pursuant to Article 40.4 of the Constitution are inevitably carried out under great pressures of time, speed, and in a case such as this, emotion. Here a practical solution was arrived at. It is necessary to consider however what the correct course of action would be in a case where agreement and common sense are in shorter supply than they were here. Furthermore, since s.23 of the Childcare Act 1991 has assumed a greater importance in this appeal that it did in the proceedings in the High Court, and in any event is a novel and unusual provision, it is necessary to consider the context in which it might apply.


One important feature of this case only emerged when it was contended on behalf of the respondents that the case was moot because the original order of the District Court made on the 29th of October had expired on the 26th of November 2015. The application herein was commenced on the 6th of November, heard over three days on the 10th, 11th and 12th of November, and the judgment of the High Court delivered on the 17th of November 2015. The order made that day and perfected the following day directed that the children ‘be released forthwith from such detention’. However, we have been informed that the parties immediately discussed the possibility of a staggered release from the custody of the Child and Family Agency (‘CFA’) and on the 27th of November 2015, the High Court formally made an order amending the original order in respect of costs, and also in respect of release, as follows:

‘And the Court being of opinion and so adjudging that the said return to the said Order of the 6th of November 2015 is insufficient to justify the detention of the said JMCG and JMCG as aforesaid doth Order that the said JMCG and JMCG be released from such detention but return of care to the parents to be staggered in accordance with the agreement reached by the parties up to 5.30pm on Tuesday the 24th of November 2015.’


As the reference to the 24th of November 2015 shows, the order of the 27th of November 2015 was an order formalising the arrangement which had already been put in place. In fact, new applications for interim care orders were issued by the CFA on the 19th of November 2015 made returnable for the District Court on the 23rd of November 2015. On the 24th of November, there were further negotiations and an agreement reached in respect of a period of voluntary care. The application for interim care orders was adjourned to the 10th of December 2015. On the 17th of December 2015 after extensive evidence and cross-examination the President of the District Court, granted interim care orders in respect of both children for a period of 28 days which have been renewed.. It should also be said that the respondents cooperated extensively with the proceedings, and the second named respondent has successfully completed a residential detoxification programme and is availing of after care support and seeking suitable accommodation to enable him to care for his two children. To that extent the story of this case shows that overall the system has functioned in respect of the children here. The application for an inquiry under Article 40, with which this Court is concerned, is only a part of those proceedings. However, it is I think particularly noteworthy that although the High Court made an order under Article 40.4, for release of the person whose detention or custody has not been justified, which is arguably the most important and powerful order the High Court can make, the children in question have never been ‘released’. They remained in the custody of the CFA and were still in that custody as of the hearing of this appeal. That was because, very responsibly, no party to the proceedings or the Court considered that the simple order under Article 40.4 was appropriate in the case. Indeed, on this appeal, much attention has been directed to the possible use of s.23 of the Childcare Act 1991 as providing a route by which the constitutional requirement of a fair hearing at which parties were adequately represented is maintained, without the consequence that the children would be immediately removed from the care of the CFA and returned to the custody of the parents. The issue here is one which may have ramifications for the remedy under Article 40.4 more generally, and deserves therefore some further attention.


I agree with the observations of the late Mr. Justice Hardiman in N v. HSE [2006] 4 I.R. 374 at p.534, that an Article 40 inquiry was ‘one of the great bulwarks of personal liberty and of a free society’. Part of its strength is its clarity and simplicity: only one issue is to be determined, the liberty of the individual, and normally at least, the options for the High Court hearing such an inquiry are similarly limited: the High Court can make an order for release or refuse to do so. In N v. HSE the Supreme Court considered that it was possible to make a staggered order for release because of the interests, and indeed constitutional rights, of the child concerned. However, even in such a case, the object of the order is still the release of the child, and the restoration of the custody in that case of the natural parents. Here the children remained in the custody of the CFA, and were never restored to the custody of their parents. Accordingly, it is appropriate to look closely at the method by which the remedy was applied in this...

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