G -v- The Child and Family Agency, [2018] IESC 28 (2018)

Docket Number:126/16
Party Name:G, The Child and Family Agency
 
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THE SUPREME COURT [Appeal No. 2016/126]

[Record No. 2016/11 JR]

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley J.

Between /

F.G.Applicant/Appellant -and-

THE CHILD AND FAMILY AGENCYRespondent/Respondent

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 28th day of June, 2018

Introduction

  1. As has been acknowledged by each court to have delivered judgment in these proceedings to date, the matters raised herein are of the highest and most fundamental importance to Ms. G (also referred to in this judgment as “the appellant”) and her family. The three youngest of the appellant’s five children are currently in the care of the Child and Family Agency (“the CFA”, “the Agency” or “the respondent”), a situation which as it stands will pertain until each child reaches adulthood. This appeal arises out of Ms. G’s dissatisfaction with the current access arrangements in place for visits with her children as a group, insofar as she is limited to approximately five hours per annum of family access where all three children are present. This is, by any measure, a very limited amount of such access.

  2. The appellant sought to judicially review the Circuit Court orders, made in February, 2015, confirming the present visitation arrangements. She was refused leave by Noonan J. in July, 2015 on the grounds that she had not made out a stateable case and that in any event the application was made out of time. She later explained that she had been incorrectly advised by her lawyers on the relevant time limit for the bringing of such proceedings. Having had a further meeting with the Agency to discuss access in October, 2015, she again made an application for leave on the 18th/20th January, 2016, this time before Humphreys J. The learned judge adjourned the hearing and suggested that the appellant write to the CFA, which she did on the same day; the replying letter, dated the 27th January, 2016, confirmed the arrangements then in place. At the hearing of the leave application itself, Humphreys J. granted leave to Ms. G to challenge the Circuit Court orders above referred to and also the said letter of the 27th January, 2016. The substantive judicial review hearing was heard before Heneghan J. on the 7th October, 2016. By judgment delivered on the 17th October, 2016, described as an unapproved ex tempore judgment, the learned High Court judge refused each of the reliefs sought by the appellant.

  3. Ms. G was granted leave to appeal directly to this Court from the decision of the High Court refusing the reliefs sought via judicial review. Leave was granted in relation to three points, which are set out in full at paragraph 27, infra. Broadly speaking, the issues raised are, first, whether an earlier refusal of leave to seek judicial review renders the matters raised res judicata at a subsequent application and/or whether a subsequent application, following a previous refusal, would amount to an abuse of process; second, whether the letter of the 27th January, 2016, written by an officer of the CFA, contained a decision amenable to judicial review; and, third, whether the Court should remit the matter for a full hearing in the High Court on certain identifiable issues raised in the appellant’s judicial review proceedings. Before addressing the substance of these matters, it is necessary to set out in some detail the factual background to the proceedings so as to provide necessary and useful context.

    Background and Procedural History

  4. Ms. G has five children. Her two older children, who were aged nineteen and sixteen at the time of the hearing before Heneghan J. in October, 2016, had been in care for some time before being discharged into the custody of their father in 2006. As far as is known their living and custodial arrangements have been thus ever since. Her three younger children were taken into care on the 28th November, 2013. In October, 2016, at the time of the hearing, they were aged eleven, nine and five, respectively. The precise reasons which led to the Agency’s involvement are not directly on point on the issues raised in this appeal, though they undoubtedly have some relevance, even if in a limited way. It will therefore suffice to say that the basis for the application by the CFA, as explained in Ms. G’s Statement of Facts, related to her past history of psychiatric problems, the fact that she had given up custody of her children at times in the past, and the fact that she had taken the youngest three children out of this jurisdiction at a time when a supervision order of the District Court was in place. These matters, those referred to at para. 112, infra, and indeed much more beside, constitute the complex and somewhat troubled family history of Ms. G., her eldest two and their father, and the other three and their dad.

  5. On the 7th October, 2014, Judge Geoffrey Browne, sitting in Roscommon District Court, made individual care orders under section 18(1) of the Child Care Act 1991 in respect of each of the three children. These orders provided that the care would be long-term, the relevant wording being “for so long as each remains a child” (thus these arrangements, if unaltered, will persist until 2023, 2025 and 2030 in relation to the respective children), and that Ms. G would have such access as would be determined by the Agency. The CFA grants the appellant supervised family access – meaning that all three children are present – for one hour at the time of each child’s birthday, one hour around Christmas and one hour around Easter. She thus has approximately five hours per annum of family access where all three children are present. Such access is, as Humphreys J. put it, “minimal in the extreme.” She additionally has two hours of access every month with her daughter. Moreover, the three youngest children have no access visits with their two older siblings, nor is there any telephone or correspondence access with their mother outside of the supervised visits.

  6. Ms. G appealed the care orders to the Circuit Court. She was represented at the hearing by solicitor and junior counsel. On the 19th February, 2015, Her Honour Judge Doirbhile Flanagan made an order affirming the earlier District Court orders. It was in relation to the last mentioned order that the appellant instituted the within proceedings, which of course have led ultimately to this appeal.

    First Application for Leave to Seek Judicial Review

  7. On the 27th July, 2015, the appellant applied to the High Court for leave to seek judicial review of the said Circuit Court decision and orders. Her application was refused by Noonan J. following an ex parte hearing. He declined to grant leave on the bases that Ms. G had not demonstrated any stateable grounds and that, in any event, the application was well outside the relevant three-month time limit. The appellant, who was representing herself, did not on that occasion seek an extension of time within which to bring the application. No appeal was taken against the refusal of the learned judge.

    Second Application for Leave to Seek Judicial Review

  8. On the 12th October, 2015, the appellant had a meeting with CFA staff. It took place at her home and was attended by Ms. Lillian Laheen, Social Worker, Ms. Deirdre Gallagher, Social Work Team Leader, Ms. Eileen MacNeill, Childcare Leader, and Ms. Elaine Molloy, Minutes Taker. During the course of this meeting, the appellant expressed her dissatisfaction with the current position and sought an increase in access visits, but no alterations were made to the prevailing access arrangements.

  9. Then, on the 20th January, 2016, the applicant made a second application for leave to seek judicial review, this time before Humphreys J. She again sought to review the care orders, and also sought mandatory orders in relation to access. Ms G. informed the learned judge of the earlier refusal of leave and stated that she had been advised by her then lawyers that the time limit for seeking judicial review of the orders of February, 2015 was six months; this, of course, was incorrect, as the relevant time limit is only three months (Order 84, Rule 21(1) RSC). The relevance of this mistake was that if her lawyers’ advice had been correct then the original application before Noonan J. would have been in time, whereas as was, it was made outside the prescribed period. The appellant showed to Humphreys J. an email from her barrister to her solicitor containing this incorrect advice; the learned judge accepted this as evidence that she had been wrongly advised. A redacted version of this email was later exhibited to the appellant’s application. Humphreys J. decided that the application then before him should be made on notice. In addition, following his suggestion, the appellant immediately wrote to the CFA making specific proposals for increased access.

  10. The resulting letter, which was dated that very day, was titled “Re: Formal Notice in Regard To Access.” It was addressed to a “Ms. Buckley”, meaning Ms. Helen Buckley, Principal Social Worker and Complaints Officer in Roscommon. Ms. G opened the letter by stating that “[b]y now you are well aware from the numerous telephone calls I have made to you that I am not satisfied with the poor level of contact I am having with my three children … and that the legal requirement under the Childcare Acts legislation that access be reasonable is not being complied with by the Roscommon branch of Tusla.” The appellant requested that the situation be remedied immediately by access being significantly increased. In particular, she strongly urged the Agency to increase the frequency of visits and extend the duration of each visit. She suggested three “fun family activities” with a view to ensuring that the children look forward to each access visit: an outing to the cinema; a picnic and game of football in the park; and a family trip to the swimming pool. She requested a reply to these proposals within seven days. She...

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