G (J) and Others v Child & Family Agency

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 11 March 2015
• Neutral Citation: [2015] IEHC 172
• Court: High Court
• Date: 11 March 2015

[2015] IEHC 172

THE HIGH COURT

[Record No. 778 JR/2014]

G (J) & Ors v Child & Family Agency

No Redaction Needed

JUDICIAL REVIEW

BETWEEN/

J.G. SNR., K.G., J.G. JNR. (A MINOR SUING THROUGH HIS PARENTS/NEXT FRIENDS) AND B.G. (A MINOR SUING THROUGH HIS PARENTS NEXT FRIENDS)

APPLICANTS

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

Child assault – Interim care orders – Child Care Act, 1991 – Child and Family Act, 2013 – Child protection conference – Disclosure of information – Fair procedure

Facts: The first and second named applicants sought an order of certiorari and an order of prohibition against the respondent for restraining them from holding a child protection conference unless detailed information was made available to the first and the second named applicants in advance of holding such conference. The applicants contended that concealment of information from them about the welfare of their children was contrary to the concept of a fair procedure.

Ms. Justice Iseult O'Malley refused to grant both orders of certiorari and prohibition to the first named and second named applicants. The Court observed that both the first named and the second named applicants were entitled for full and clear information from the social worker so that they became aware of intended courses of action that might be taken in the conference. The Court held that the policy document of the respondent was an adequate disclosure that was made to the applicants.

Introduction

1 The first and second named applicants are the parents of the third and fourth named applicants. Two other children of the family are currently in care. The applicants' claim in these proceedings is that their rights were breached by the respondent in relation to the convening of a case conference on the 13 ^th June, 2014, which resulted in an application to the District Court for a supervision order pursuant to the provisions of the Child Care Act, 1991. They make similar complaints in relation to a case conference held on the 25 ^th November, 2014. They seek declaratory relief, orders of certiorari and orders preventing the holding of a further conference or the making of an application to the District Court unless full disclosure of specified material is made to them.

2 The respondent opposes the application on the basis that the applicants have "failed to identify facts from which an arguable case in law can be made that [they] are entitled to the reliefs which they seek." The availability of judicial review in the context of the case conference process is contested. There is also an argument that the application is out of time.

3 Without prejudice to these contentions, it is pleaded that no rights of the applicants have been breached and that the decisions taken to hold the case conference and to make an application to the District Court for orders relating to the third and fourth named applicants were properly made.

Background facts

4 The first and second applicants married in December, 2007. Mrs. G. had two daughters from a previous relationship. The third and fourth named applicants, both of whom are boys, were born in April, 2008 and February, 2009 respectively. The family has lived in Ireland since June, 2008.

5 In September, 2012 when the family was living in County X, the eldest girl presented herself at a Garda station and claimed that she had been assaulted by the first and second named applicants. This allegation, which is now the subject of criminal charges and which is denied by the applicants, resulted in all four children being taken into care on foot of an emergency care order. Since that date there have been a number of applications and orders in care proceedings before the District Court, the Circuit Court (on appeal by the respondent against a refusal of full care orders) and judicial review proceedings as well as an application under Article 40.4 in respect of the boys. The latter proceedings ultimately became moot and were struck out in May, 2013.

6 The outcome of the District Court proceedings had been an order made on the 16 ^th May, 2013, that the two girls be taken into care until they reach the age of 18. Applications for interim care orders in respect of the two boys were refused and they were returned to the parents on foot of six-month supervision orders.

7 It should be noted that an appeal against the care orders in respect of the girls was not pursued and the first and second named applicants indicated through their solicitor that they would not be attending any care review meetings relating to them. However, they continue to maintain that the eldest girl is a fantasist who should be psychiatrically examined and that the younger girl is following her lead.

8 The first and second named applicants were unhappy with certain terms attached to the supervision orders relating to the boys - specifically, that they were to undergo parenting capacity assessment; that the second named applicant was to receive counselling/psychotherapy; and that they were both to comply with all requirements of the HSE/CFA. They were granted leave to seek judicial review in respect of these matters in September, 2013.

9 It appears that after the grant of leave, the respondent returned to the District Court and applied for interim care orders on the basis that the first and second named applicants were not complying with the terms of the supervision orders. The alleged non-compliance related to those parts of the orders challenged in the judicial review proceedings. On the 25 ^th October, 2013, the District Court granted interim care orders for 20 days. A stay was granted to enable the applicants to make an immediate application to the High Court. On the 29 ^th October, 2013, the High Court granted leave to seek certiorari in respect of the interim orders. The respondent discharged the supervision orders in the District Court on the same day, but applied for and obtained warrants to search for the two boys. This apparently involved armed Gardaí arriving at the family home and breaking into it, while the parents were attending the High Court in Dublin.

10 The judicial review application was heard in November, 2013. The interim care orders were quashed on the basis that the District Court had no power to order that the applicants attend for psychological or parenting assessment, and the decision to make the interim care orders was based at least in part on their refusal to do so - see the judgment of Hogan J. in J.G. & ors v Judge Staunton & ors, [2013] IEHC 533, delivered on the 27 ^th November, 2013. The matter was remitted to the District Court, as Hogan J. felt that there had been findings of fact by the District Judge, which might in themselves ground a care order.

11 The respondent then renewed the applications before the District Court for interim care orders. In January, 2014 the application was refused. According to the applicants herein, the District Judge expressed concern that the situation had become a "power struggle" between the parents and the social workers. What was being asserted against the parents was that they were "coaching" the boys in their responses to social workers, but there was no evidence of physical abuse or neglect in relation to them.

12 According to the respondent, the District Judge found that there had been "coaching", that the parents were thwarting the sibling relationship between the boys and the girls and that there had been a degree of emotional abuse. However, he did not deem it to be in the boys' best interests to remove them from their parents.

The June 2014 ease conference

13 After the refusal of the orders the family moved to County Y and the boys started at a new school. The applicants say that they heard no more from the respondent until a date in April, 2014, when two social workers turned up at their house. It appears that the social work file had been transferred to the new area. Two weeks later one of the social workers who had been at the house, a Mr. D.C., rang the second named applicant. He identified himself and said that he wanted to arrange a meeting between the applicants and the respondent about the boys. She responded that any communication should go through their legal representative and refused to answer any questions as to the address of the family or the name of the boys' school. She says that he threatened to return to court if she didn't tell him.

14 On the 9 ^th June, 2014, the applicants received a letter dated 20 ^th May from the respondent inviting them to a child protection conference scheduled for 10 a.m. on the 13 ^th June. The letter stated that the conference was being convened because "child protection concerns" had been expressed in relation to the boys. It was further stated that

"The purpose of the conference is to discuss matters that affect you and your child/ren, and to look at how we can assist you. Various professional people, who will know you and your child/ren, will be at this meeting."

15 A list of other persons invited to attend was enclosed. This included a number of social workers, a garda, a public health nurse and the principal of the boys' school. There was also an explanatory leaflet about child protection conferences. This is a short document and in full reads as follows:

"If the decision is that the child is not at risk of significant harm there may be discussion about providing some supports to the child and family and the meeting finishes."

If the decision is made that the child is at risk of ongoing significant harm, then a Child Protection Plan will be made and agreed. The child's name will be placed on the Child Protection Notification System (CPNS). The decision to make a Child Protection Plan and to list a child on the CPNS is a very serious one and is only taken where there are clear signs that a...