A O'D v Judge Constantine G O'Lea ry

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 14 October 2016
• Neutral Citation: [2016] IEHC 555
• Court: High Court
• Docket Number: [2015 No. 420 JR]
• Date: 14 October 2016

[2016] IEHC 555

THE HIGH COURT

JUDICIAL REVIEW

Baker J.

[2015 No. 420 JR]

BETWEEN

A O'D

APPLICANT

AND

JUDGE CONSTANTINE G. O'LEARY

RESPONDENT

AND

CC

THE CHILD AND FAMILY AGENCY

AND

VAL KERR (GUARDIAN AD LITEM)

NOTICE PARTIES

Family – The Child Care Act, 1991 – The Child Care (Amendment) Act, 2011 – Appointment of solicitor for x – Welfare of child – Voice of child – Complexity of issues – Best interests of child – Whether Guardian ad litem possessed the power to engage legal representation – O.6, r.1 of the District Court Rules 2014

Facts: The applicant/mother sought an order of certiorari for quashing the care order of the first named respondent to the effect that the third named notice party being the guardian ad litem of the applicant's child was entitled to instruct a solicitor to act as an advocate for her in the same way as an advocate of any party in the proceedings under the Child Care Act of 1991. The applicant contended that the only persons who could appear before the Court were a party to a suit, solicitor or counsel for that party, but not the guardian ad litem as he/she was not a party to the child care proceedings.

Ms. Justice Baker refused to grant the desired relief to the applicant. The Court held that since the guardian ad litem represents the best interests of the minor, he/she possessed the right to ask for legal representation in conformity with fair procedures. The Court found that s. 13 of the Child Care (Amendment) Act, 2011 amending s. 26 of the Act of 1991 made provisions for the entitlement of guardian ad litem to instruct a solicitor wherever necessary. The Court observed that the child care proceedings being akin to civil proceedings could not be taken to mean that the guardian ad litem was a party to the action. The Court found that given the views of the guardian ad litem in the present case that there would be denial of fair procedures if she was not given the right to legal representation, it became imperative to permit her to engage a solicitor for the welfare of the child.

JUDGMENT of Ms. Justice Baker delivered on the 14th day of October, 2016.

1 The applicant seeks an order of certiorari quashing an order made by the respondent judge of the District Court on 13th May, 2015 by which he ruled that the third notice party, the guardian ad litem appointed to represent the interests of her child, EOD, be entitled to instruct a solicitor or solicitor and counsel who might, with leave of the District Court, act as an advocate for her, the guardian ad litem, in the same way as an advocate of any party in the proceedings under the Child Care Act, 1991 (‘the Act of 1991’), as amended, relating to the child.

2 Declaratory relief is also sought that it not within the power of a guardian ad litem appointed under the Act of 1991, as amended, to become involved in the determination of facts which are disputed between the Child and Family Agency (the ‘CFA’) and the parent of a child the subject matter of child care proceedings.

3 Leave to bring judicial review was granted by Noonan J. on 20th July, 2015.

4 The grounds on which relief is sought may be summarised as follows:

a. The order of the District Judge was made without jurisdiction and was ultra vires the Act of 1991, and in particular s. 26 thereof;

b. It is unlawful for the District Court to permit a person who is not a party to proceedings before it to instruct a legal representative to act as advocate for that party in the same way as an advocate might act for a party to the proceedings, there being no statutory provision by which this is authorised;

c. Permitting the notice party, not a party to the proceedings relating to the child of the applicant to instruct her legal representatives such that she could act as an advocate in child care proceedings is in breach of the right of the applicant to constitutional justice and in particular her rights under Articles 40.3, 41, and 42 of the Constitution of Ireland;

d. The order of the District Judge fails to show jurisdiction;

e. The Act of 1991 does not give to a guardian ad litem appointed under its provisions any role in a factual dispute between the CFA and the parent of a child the subject matter of care proceedings under the legislation.

5 Oral and written submissions have been furnished by the applicant, the CFA, and the guardian ad litem. The CFA did not file a notice of opposition.

Factual background

6 The applicant is the mother of EOD, a child born on 30th October, 2009 who is the subject of proceedings under the Act of 1991, commenced by the CFA. The child was placed into the voluntary care of the CFA on 14th March, 2011 pursuant to s. 4 of the Act of 1991 and placed with foster carers on 23rd February, 2012 with whom she continued to live until recently. The first care order under s. 18 of the Act of 1991 was made on 15th February, 2012, and the child remains in the care of the State pursuant to a succession of such orders.

7 The first notice party is the father of the young girl.

8 The care proceedings are fully contested, and the applicant wishes that her daughter be placed with her brother J and half sister A who live with A's father.

The order of the District Court

9 On 1st April, 2015 the District Court appointed Ms. Kerr to be guardian ad litem‘to act in the proceedings on behalf of the minor’, the Court having determined that she was a fit and proper person to act in such role, that she had no interest in the matter in question in the proceedings adverse to that of the minor, and that she consented to so act.

10 The form of the order precisely reflects the form contained in the provisions of O. 84 of the District Court Rules, 1997, S.I. 93/1997.

11 The guardian ad litem engaged Mr. Eamonn Carroll solicitor to act for her following her appointment. Her evidence is that as she regarded the case to be complex, the best interests of the child required that she engage a solicitor. Some degree of complexity arose from the relationship that the child has with her half sister and brother, both of whom live with the father of her half sister with whom the child has no blood link, but with whom she has a good relationship. The guardian ad litem also anticipates significant difficulty in the long-term foster placement for the child as the placement which had lasted for a number of years has now broken down. The guardian ad litem gives a number of examples of factual matters in respect of which she says she should be entitled to give evidence, cross-examine and make submissions in the interest of the child and that it is ‘irrational’ to assume that she can advise the Court of the best interests of the child without ‘being permitted to enter into the disputed issues of fact regarding those best interests’.

12 On 13th May, 2015 the applicant and the first respondent made an application that the District Court would determine the following question which gave rise to the decision impugned in these proceedings:

‘An Order to determine whether Mr. Carroll is entitled to fully represent Miss Kerr in these proceedings with a right of audience and a right to cross-examine or not.’

13 The District Court heard submissions in the matter and by order of the 13th May, 2015 ruled as follows:

‘… that the Guardian ad litem is entitled to instruct a solicitor, or solicitor and counsel, who may with the leave of the Court act as an advocate for the Guardian in the same way as an advocate of any party in the proceedings.’

14 The application for judicial review relates to the correctness of that order.

15 Two separate but related matters arise for consideration as to the meaning and effect of the order:

(i) Whether the guardian ad litem is entitled to be represented in the care proceedings;

(ii) Whether the guardian ad litem is to be considered to be a party to the proceedings.

16 In the hearing before the District Court the CFA supported the proposition that the guardian ad litem was entitled to be represented. It makes the contrary argument in this judicial review.

17 The primary argument made by the applicant is that the legislation does not permit the District Judge to make the order and that he acted ultra vires. I turn first to consider the legislative provisions

The legislation

18 Application for a care order is governed by the provisions of the Act of 1991. The power and duty to institute proceedings is vested in the CFA by s. 16 of that Act. The jurisdiction is vested in the District Court by s. 28. A care order may be made by that court until the child reaches its majority or for such shorter period as the court may determine. Section 18(6) permits the court to give directions as to the care of a child the subject of an application for a care order, and orders may be made by the court of its own motion or ‘on the application of any person’.

19 Section 26 provides for the appointment of a guardian ad litem, and the relevant provisions of the section as amended are as follows:

‘(1). If in any proceedings under Part IV or VI the child to whom the proceedings relate is not party, the court may, if it is satisfied that it is necessary in the interests of the child and in the interests of justice to do so, appoint a guardian ad litem for the child.’

20 No argument is made that the District Court did not have jurisdiction to appoint a guardian ad litem, and indeed the order for the appointment of Ms Kerr was made on the application of the applicant.

21 The section provides for the payment of the costs incurred by the guardian so appointed, subject only to the right of the CFA to seek an indemnity in respect of those costs from another party.

‘(2) Any costs incurred by a person in acting as a guardian ad litem under this section shall be paid by the Child and Family Agency. The Child and Family Agency may apply to the...