Child and Family Agency v M.L. (Otherwise G.)

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] IECA 109
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2019/32
• Date: 12 April 2019

IN THE MATTER OF PART IVA OF THE CHILD CARE ACT, 1991 AS AMENDED

AND IN THE MATTER OF AN APPLICATION FOR A SPECIAL CARE ORDER IN RESPECT OF G, A CHILD

BETWEEN/

CHILD AND FAMILY AGENCY

APPLICANT/RESPONDENT

- AND -

M. L. (OTHERWISE G.)

FIRST RESPONDENT/RESPONDENT

- AND -

ORLA RYAN

SECOND RESPONDENT/RESPONDENT

- AND -

G.

APPELLANT/CHILD WITH RIGHTS OF A PARTY

[2019] IECA 109

Whelan J.

Peart J.

Whelan J.

Baker J.

Record Number: 2019/32

THE COURT OF APPEAL

Special Care

Special care order – Statutory threshold – Right to liberty – Appellant seeking to set aside special care order – Whether the statutory threshold for the making of the special care order was met

Facts: The appellant, a minor born on the 25th December 2001, appealed to the Court of Appeal from a special care order made pursuant to s. 23H of the Child Care Act 1991 by Faherty J in the High Court on the 7th December, 2018. The appellant sought to set aside the special care order on the grounds, inter alia, that the statutory threshold for the making of same was not met and that the order failed to protect, defend and vindicate her constitutional rights, particularly her right to liberty.

Held by Whelan J that the appellant’s detention on foot of the special care order did not amount to a deprivation of liberty so as to engage Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms in light of the statutory safeguards attendant upon the making of the order and the clear statutory regime of supervision and review provided for under the Act and the manner in which the High Court had actively managed supervised and monitored the case throughout the duration of the order. Whelan J held that the appellant had not established that the trial judge was incorrect in her determination that, based on the facts as proven before her, the statutory threshold for making a special care order pursuant to s. 23H of the Child Care Act 1991 was met.

Whelan J held that, in the circumstances, the special care order was both necessary and proportionate and was validly made.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 12th day of April, 2019

1 This is an appeal from a special care order made pursuant to Section 23H of the Child Care Act 1991 (‘s.23H’) by Ms. Justice Faherty in the High Court on the 7th December, 2018. Such an order lasts for three months and may be extended for a total period of up to nine months.

Parties to appeal

2 The proceedings relate to the appellant (hereinafter G.), a minor born on the 25th December 2001. She seeks to set aside the special care order on the grounds, inter alia, that the statutory threshold for the making of same was not met and that the order fails to protect, defend and vindicate her constitutional rights, particularly her right to liberty.

3 The first respondent is G.'s mother. G.'s father is not a party to the proceedings. The second respondent is the guardian ad litem of G. The third respondent is the Child and Family Agency (the ‘CFA’). All respondents supported the application before the High Court for the making of a special care order and all oppose the appeal.

4 In addition to G.'s guardian ad litem representing her interests through a legal team in the High Court and on appeal, G., as a child with rights of a party, had her own legal team of solicitor, junior and senior counsel at the High Court and for the appeal.

Essential questions

5 The key determinations for this court include:

(a) Whether the evidence before the trial judge entitled her to find, as a matter of law and fact, that the threshold for making a special care order pursuant to s23H was met. Two sub issues are raised: (i) whether the trial judge erred in determining that the evidence established that G.'s behaviour posed a real and substantial risk to her own life by self-harm/suicide and (ii) whether the trial judge erred in concluding that therapeutic objectives, which included diverting G. from violent tendencies towards others, achieved a relevant welfare benefit within the meaning of s23H.

(b) Whether the court failed to protect and vindicate G.'s constitutional right to liberty and whether the special care order proposed amounted to preventative detention.

(c) Whether sufficient weight was given by the High Court to other views that the making of the special care order was not required in the circumstances of this case – including G.'s own views and those of the Director of Oberstown Detention Centre.

(d) Whether a Medical Report from Professor H. Kennedy was properly received by the Court.

(e) Whether, in all the circumstances the order made complies with Section 23H of the Child Care Act 1991, the relevant Constitutional provisions and the European Convention on Human Rights.

Brief introduction

6 G. is now seventeen years old. Born male, G. has from the aged of fifteen self-identified as a transgender person male to female. Accordingly, at the express behest of G., female gender pronouns are utilised throughout this judgment. It appears relatively little is known about the appellant's early childhood. She was born in Ireland to parents from overseas. She is an only child. It appears that G. was born into a household of extreme depravity and domestic violence. Her parents have been described as seemingly ‘locked into a sadomasochistic relationship’. The mother reported that the father was violent and controlling. By way of example, one Psychological Reports suggest that the ‘…father prevented mother from breastfeeding or tending to the baby…’ G. witnessed her father's abusive conduct towards her mother. G. was also physically and emotionally abused by her father. When G. was old enough the father recruited her to join him in the abuse of the mother.

7 G. was taken into care in 2012 at the age of 10 and has remained in the care of the state ever since, initially residing in foster care arrangements, subsequently in residential care, laterally serving sentences of detention between May 2018 and the 7th November 2018 following convictions in the District Court in May 2018 and July 2018.

8 A central precipitating factor in the CFA seeking interim special care orders and subsequently a full special care order, was G.'s suicidality and her repeatedly expressed intention to take her own life with the date identified as being on her release from Oberstown detention centre. G. contended before the High Court and on appeal that these threats were wholly instrumental – solely aimed at achieving outcomes that were being denied to her – and were not seriously intended. An interim special care order was made pursuant to section 23L of Part IVA of the Child Care Act, 1991 by Faherty J. on the 7th of November 2018 and subsequently on the 20th of November 2018. The latter order remained in place until the full special care order, the subject of this appeal was made by the High Court on the 7th December, 2018. Each of these aspects, to the extent relevant to the issues in this appeal, will be considered more fully hereafter.

The relevant legal framework

Child Care Act, 1991

9 The statutory mandate of the CFA is specified in s.3 of the Act as amended which provides that the agency shall, ‘promote the welfare of children who are not receiving adequate care and protection.’ The long title records that the purpose of the Act is ‘to provide for the care and protection of children’. The legislative scheme establishes overarching duties of child protection and s.4 imposes on the CFA a duty to take ‘into its care’ any child who ‘requires care or protection’ which he (or she) is unlikely to receive unless ‘that child is taken into care.’

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 (the ‘2011 Act’) which substituted and inserted Part IVA into the Child Care Act, 1991 (‘Part IVA’). Part IVA became operative in the aftermath of the Children's Referendum of November 2012 which enshrined Article 42A in the Constitution. It reflects the legislature's intent to gives substantive effect to certain of the rights enshrined in Article 42A.

10 Part IVA was commenced by Statutory Instrument No. 637 of 2017 Child Care (Amendment) Act 2011 (Commencement) Order 2017 on the 31st December 2017. Prior to the latter date, for the preceding two decades or so, such cases were dealt with pursuant to the inherent jurisdiction of the High Court. All such applications now fall to be determined under Part IVA.

11 Certain definitions are of relevance, as provided for in s.23A of the Act, Part IVA:

‘“ Care Requirements” means the care a child requires having regard to his or her behaviour.’

‘“ Special Care” is to be construed in accordance with s.23C; “Special care order” means an order made under s.23H.’

12 Section 23C provides:-

‘In this part “ special care” means the provision, to a child, of –

(a) Care which addresses –

(i) His or her behaviour and the risk of harm it poses to his or her life, health, safety, development or welfare; and

(ii) His or her care requirements, and includes medical and psychiatric assessment, examination and treatment; and

(b) Educational supervision, in a special care unit in which the child is detained and requires for its provision a special care order or an interim special care order directing the Child and Family Agency to detain the child in a special care unit, which the Child and Family Agency considers appropriate for the child, for the purpose of such provision and may during the period for which the special care order or interim special care order has effect, include the release of the child from the special care unit –

(i) In accordance with s.23NF; and

(ii) Where the release is required for the purposes of s.23D or 23E in accordance with s.23NG’.

13 The...