F.G. v Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 18 March 2016
• Neutral Citation: [2016] IEHC 156
• Docket Number: [2016 No. 11 J.R.]
• Court: High Court
• Date: 18 March 2016

BETWEEN

F.G.

APPLICANT

AND

THE CHILD AND FAMILY AGENCY, THE OMBUDSMAN FOR CHILDREN, JUDGE GEOFFREY BROWNE AND HER HONOUR JUDGE DOIRBHILE FLANAGAN

RESPONDENTS

[2016] IEHC 156

Humphreys J.

[2016 No. 11 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Family – S. 18 (1) of the Child Care Act 1991 – Judicial review – Child care orders – Interference with family rights – Welfare of children – Interests of justice – New evidence

Facts: Following the refusal of the High Court to grant an ex-parte leave to seek an order of certiorari against the order of the Circuit Court affirming the order of the District Court allowing the applicant to have minimal four hours of supervised access to her children, the applicant now sought leave to challenge the said care orders made by the District Court and Circuit Court and also a letter of the first named respondent refusing the applicant's request for more access to her children. The applicant contended that at the time of refusal of the earlier leave, she was misadvised by her legal advisers concerning the limitation period and that certain new developments had prompted the present application. The applicant contended that the orders of the Circuit Court amounted to interference in her family rights and that there was lack of disclosure of reports made by the social worker at the behest of the first named respondent.

Mr. Justice Richard Humphreys granted leave to the applicant on limited grounds while granting liberty to the applicant to amend her statement of grounds to include certain reliefs the prominent of which was to seek an order of certiorari for quashing the Circuit Court order and the relevant letter of the respondent. The Court, however, directed that the name of the second and third named respondents should be struck off from the present proceedings in lieu of o. 84, r. 22(2A)(a) of the Rules of the Superior Courts (Judicial Review) 2015. The Court observed that a challenge to an order of a District Court would lie before the District Court by way of an application for an entitlement for additional access and judicial review forum could not be invoked. The Court held that even after refusal of leave earlier by the High Court, the applicant was not precluded from making a fresh application as there existed new grounds for arguability of the present application, namely, reliefs sought at present were not included in the original application. The Court while granting extension of time to the applicant observed that the impugned orders of the Circuit Court amounted to an impressible delegation of judicial function, namely, determination of access to children to the first named respondent.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of March, 2016

1 On 7th October, 2014, Judge Geoffrey Browne sitting in Roscommon District Court made care orders under s. 18(1) of the Child Care Act 1991 in respect of each of three children of the applicant. Each order provided that the care would be long-term and the applicant would have such access as would be determined by the Child and Family Agency.

2 These orders were appealed to the Circuit Court. On 19th February, 2015, Her Honour Judge Doirbhile Flanagan made an order affirming the three District Court orders.

3 The access actually afforded to the applicant by the Child and Family Agency is minimal in the extreme and amounts to four hours' supervised access per year. In addition, the children do not appear to have any access with their older siblings, or any telephone or correspondence access with the applicant outside of the designated four hours.

4 On 29th April, 2015, the applicant says that she received legal advice as to the options to challenge the Circuit Court order. She has exhibited a redacted version of what purports to be an email from Mr. Hugh J. Murphy, B.L. to a person who appears to have been a legal executive in the firm of solicitors then acting for the applicant, which was either copied or forwarded to the applicant. The email, taken at face value, purported to state that the limitation period for judicial review was six months. In fact, more than three years beforehand, with effect from 1st January, 2012, the limitation period had been reduced to three months by the Rules of the Superior Courts (Judicial Review) 2011. Of course in this application I have not heard from Mr. Murphy, and perhaps there is some explanation for this email of which I have not been made aware, but for the purposes of the present proceedings I am accepting that this document is what it purports to be, namely (incorrect) legal advice as to the limitation period applicable to judicial review to challenge the order of the Circuit Court of which the applicant has sought to complain.

5 Within what she appears to have been told was the appropriate limitation period, she applied to Noonan J. on 27th July, 2015 for leave to seek certiorari of the Circuit Court decision (2015 JR. No. 385). This application was refused, apparently on the basis that it was out of time. The applicant does not appear to have sought an extension of time in that application.

6 A meeting with the agency then appears to have taken place on 12th October, 2015, in which the applicant expressed her dissatisfaction with current arrangements and made a number of proposals, none of which appear (from what I have been told) to have been responded to positively or possibly at all.

7 On 20th January, 2016, the applicant having initially opened the present leave application, and having discussed with me her wish to pursue the question of further access, the matter was adjourned and the applicant wrote to the agency seeking an increase in the permitted access and making specific suggestions in that regard.

8 The agency replied to this request by letter dated 27th January, 2016, signed by Ms. Helen Buckley, Complaints Officer. The reasons given for declining increased access were, in full, as follows:

‘I am aware that you would like increased access with your three children. The children's social worker, Ms. [Lillian] Laheen, regularly reviews the access arrangements which includes the children's views about access. Her most recent visit with the children was on 11th January last.

At present the children are clearly stating that they will attend access with you for their birthdays, Christmas and Easter and ask that two staff supervise these visits. The children have also expressed the wish that access is for one hour.

In order to encourage the children to attend access we need to listen to their wishes in respect of the length and frequency of access.’

9 Thus the sole stated reason for refusing more access was that such access was contrary to the wishes of the children. At this point, the children are aged 4, 8 and 10.

10 The applicant now seeks leave to challenge by way of judicial review the care orders and the agency's letter of 27th January, 2016, as well as seeking mandatory orders in relation to care. An extension of time is now expressly sought in relation to the challenge to the care orders.

11 The challenge to the Ombudsman for Children was not pursued. Naming the learned judges as respondents is not appropriate in the light of O. 84, r. 22(2A)(a) of the Rules of the Superior Courts (Judicial Review) 2015.

Does the previous judicial review application inhibit grant of leave on this application?

12 At one level, the fact that the applicant previously applied to Noonan J. and was refused could in principle be a factor to which regard should be had in deciding on leave the second time around. However, as the Supreme Court did in a different context in Sivsivadze v. Minister for Justice, Equality and Law Reform [2015] IESC 53 (23rd June, 2015) per Murray J. (Hardiman, O'Donnell, Clarke and MacMenamin JJ. concurring) at para. 31, I must have regard to the objective interests involved rather than automatically and mechanically exercising a discretion against the applicant. All of the circumstances must be taken into account, including in particular the fact that the applicant is seeking new additional reliefs in her present application, and is bringing significant new evidence to bear in relation to the reliefs that were refused ex parte on a previous occasion.

13 There are a number of factors as a matter of law to significantly distinguish the present application from that before Noonan J. Firstly, in the original application, the applicant appears not to have sought an extension of time. Such an application was, therefore, not refused, because it was not made. The fact that a particular application may be out of time does not, at the level of principle, absolutely preclude in all circumstances a subsequent application for an order extending time.

14 Furthermore, the interests of justice are of significance in this context. The applicant not only states that she was misadvised by her legal advisers as to the limitation period, but has produced documentary evidence to that effect. She has, in fact, shown the entire, unredacted email from her counsel to me prior to my directing that the agency be put on notice, although only a redacted version is exhibited. I considered that it would not be fair or appropriate for the agency to have access to the remaining content of the email, which amounts to privileged legal advice on the substance of the Circuit Court order. However, what purports to be legal advice as to the limitation period as set out in the redacted portion is a separate matter and is clear and unambiguous. Assuming that the document exhibited by the applicant is a true copy of the email containing the advice given to her, and for the purposes of these proceedings I have no reason to think it is not, that advice was incorrect. It must have, therefore, been something of a surprise to her that her original application was rejected...