A.F, (A Minor) v Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 20 June 2019 |
| Neutral Citation | [2019] IEHC 435 |
| Court | High Court |
| Docket Number | [2019/106. J.R.] |
| Date | 20 June 2019 |
[2019] IEHC 435
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2019/106. J.R.]
IN THE MATTER OF
A.F. A MINOR BORN ON 13TH MARCH, 2003
AND IN THE MATTER OF
ARTICLES 40.3, 41, 42 & 42(a) OF THE CONSTITUTION
AND IN THE MATTER OF
THE CHILD CARE ACT 1991 (AS AMENDED) AND THE INHERRENT RESTRICTION OF THE HIGH COURT
Judicial review – Special care order – Declaratory relief – Applicant seeking a declaration that the decision and/or policy of the respondent to defer the making of an application for a special care order in the High Court in respect of the applicant until a place was available, despite having made a determination that the applicant required special care, was unlawful – Whether the proceedings were moot
Facts: The Statement of Ground before the High Court was dated 25th February, 2019. At para. (d) the relief sought was set out incorporating nine sub-paragraphs. At the opening of the matter it was indicated that the judicial review was proceeding on the basis of sub-para (4) which stated: “A declaration that the decision and/or policy of the respondent [Child and Family Agency] to defer the making of an application for a Special Care Order in the High Court in respect of the applicant, as required pursuant to s. 23F(8) of the Child Care Act 1991 as amended, until a place is available, despite having made a determination pursuant to s. 23F(1) and (7) that the applicant requires special care, is unlawful”. The grounds upon which the relief was sought were set forth in para. (e) of the Statement of Grounds and sub-para 10 thereof provided: “Despite the passage of nineteen days, and the fact that AF [the applicant] has been assessed as at ‘immediate’ risk, the respondent has not applied for a Special Care Order for AF and has failed to give any indication to AF’s guardian ad litem as to when it will do so. It appears to be the respondent’s position that, despite the mandatory wording of s. 23F(8), it does not have to make such an application until it believes that it is ready to do so. It is said that it has no placement available for AF at present and is unable to give any indication as to when a placement will be available, despite the ongoing immediate risk to AF”. The respondent acknowledged that there was a mandatory obligation comprised within s. 23F(8) however submitted that in the absence of a timeline provided for in that subsection the obligation on the respondent was to make the application as soon as is practicable. From the outset the respondent asserted that the proceedings were moot because of a decision bearing date 5th March, 2019 wherein the National Special Care Committee determined that the applicant no longer required special care.
Noted by O’Regan J that a ruling was given to the effect that the declaratory relief as to the import and effect of s. 23F(8) was not moot. In that regard the court was alert to the fact that there was a discretion vested in the court notwithstanding that the issue might be considered moot and furthermore in accordance with the judgment of MacMenamin J in SMcG & JC v Child and Family Agency [2017] 1 IR 1 if the understanding of the relevant section by the Child and Family Agency was incorrect this would result in a procedural flaw having ongoing affects not only potentially on the applicant but also on other cases and therefore a determination on the issue was in the interests of the proper administration of justice. Furthermore because of the volatile behaviour of the applicant, O’Regan J was satisfied that an application for secure care was capable of repetition and accordingly the section should be considered in the best interests of the child.
O’Regan J held that, in all of the circumstances, the deliberate and intentional policy of the respondent not to take any steps to apply to the court as per the mandate incorporated within subs. 8 at a time when the requirements of subs. 1 to subs. 7 of s. 23F had been fulfilled (based on available placement and priority status) was inconsistent with the meaning of subs. 8; further in circumstances where there had been a full compliance with subs. 1 to subs. 7 with a failure to take any step whatsoever in fulfilment of the mandated requirement of subs. 8, for a period of nineteen days, without any timescale or explanation connected to the process of such application proffered for the making of the application to the High Court, was unlawful.
Relief granted.
The applicant herein was born … in 2003 and is now 16 years old. He has been in the care of the Child and Family Agency (C.F.A.) since 18th of December, 2017 on foot of an interim Care Order pursuant to s.17 of the Child Care Act 1991. The order has been extended from time to time currently in being until 14th June, 2019. The applicant is presently residing in … since May, 2018.
From September 2018 there had been a deterioration in the behaviour of the applicant leading to an application for directions in the District Court in December, 2018. On the 10th December, 2018 by decision of the National Special Care Committee of the Respondent, pursuant to s.23F of 1991 Act as amended (this section came into force on 31st December, 2017 and prior to same there was a secure care regime operated pursuant to the inherent jurisdiction of the High Court) a determination was made that it was satisfied that there was reasonable cause to believe that the applicant requires special care (namely that there was reasonable cause to believe that the applicant's behaviour poses a real and substantial risk of harm to his life, health, safety, development or welfare and provision of continued care to the applicant other than special care, or treatment and mental health services will not adequately address that behaviour).
Subsequently the Service Director of the C.F.A. refused to make a formal determination under s.23F(7) because there was no place available in any secure unit for the applicant following which judicial review proceedings were instituted complaining of the failure of the C.F.A. to abide by its statutory obligation.
The matter was heard by Ms. Justice Faherty over the Christmas vacation 2018/2019 and ultimately the court issued a written judgment bearing date 28th January, 2019 on foot of which an order was made on 5th February, 2019 to the effect that the refusal of the Service Director to make a determination in accordance with s.23(f)(7) was unlawful.
On 6th February, 2019 the Service Director made a formal determination in accordance with s.23F(7) of the 1991 Act, which was the relevant statutory provision under consideration by the court at that time. Notwithstanding the making of that formal determination an application was not made to the High Court under subs.8. In a letter of 11th February, 2019 the C.F.A. indicated that an application would not be made as there were no vacancies available in secure accommodation for the applicant.
Leave was afforded on 25th February, 2019.
The Statement of Ground before the court is dated 25th February, 2019. At para. (d) the relief sought is set out incorporating nine sub-paragraphs. At the opening of the matter it was indicated that the judicial review was proceeding on the basis of sub-para (4) which states: -
‘A declaration that the decision and/or policy of the respondent to defer the making of an application for a Special Care Order in the High Court in respect of the applicant, as required pursuant to s.23F(8) of the Child Care Act 1991 as amended, until a place is available, despite having made a determination pursuant to s.23F(1) and (7) that the applicant requires special care, is unlawful’.
The grounds upon which the relief is sought is set forth in para.(e) of the Statement of Grounds and sub-para 10 thereof provides:-
‘Despite the passage of nineteen days, and the fact that AF has been assessed as at “immediate” risk, the respondent has not applied for a Special Care Order for AF and has failed to give any indication to AF's guardian ad litem as to when it will do so. It appears to be the respondent's position that, despite the mandatory wording of s.23F(8), it does not have to make such an application until it believes that it is ready to do so. It is said that it has no placement available for AF at present an is unable...
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M v The Child and Family Agency; B v The Child and Family Agency
...that a child requires special care. This fact was admitted by the CFA. (3) Since the judgment in A.F. v. Child and Family Agency [2019] IEHC 435, the respondent has always moved any application for a special care order within three weeks of the Special Care Committee's decision that a child......
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L.M. v The Child and Family Agency
...that a child requires special care. This fact was admitted by the CFA. (3) Since the judgment in A.F. v. Child and Family Agency [2019] IEHC 435, the respondent has always moved any application for a special care order within three weeks of the Special Care Committee's decision that a child......