J.G. and Others v Judge Kevin Staunton and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] IEHC 533 |
| Court | High Court |
| Docket Number | [2013 No. 776 JR] |
| Date | 27 November 2013 |
[2013] IEHC 533
THE HIGH COURT
AND
AND
COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S45(1)
CHILD CARE ACT 1991 S17(1)
RSC O.84 r20(7)
CONSTITUTION ART 42.1
CONSTITUTION ART 42.5
WICKLOW CO COUNCIL v FORTUNE UNREP HOGAN 4.10.2012 2012/46/13830 2012 IEHC 406
CONSTITUTION ART 40.5
CONSTITUTION ART 41
GERMAN BASIC LAW 1949 ART 6(2)
GERMAN BASIC LAW 1949 ART 6(3)
CONSTITUTION ART 42
N v HSE 2006 4 IR 374 2006 IESC 60
SOUTHERN HEALTH BOARD v H (C) 1996 1 IR 219
CONSTITUTION ART 40.3.2
CONSTITUTION ART 42.5
CHILD CARE ACT 1991 S19(1)
CHILD CARE ACT 1991 S19(2)
WESTERN HEALTH BOARD v M (K) 2002 2 IR 493 2001/24/6537 2001 IESC 104
FITZPATRICK v K (F) 2009 2 IR 7 2008/24/5254 2008 IEHC 104
CHILD CARE ACT 1991 S19(4)
EASTERN HEALTH BOARD v JUDGE MCDONNELL 1999 1 IR 174 1999/11/2651 1999 IEHC 123
CONSTITUTION ART 15.2.1
CHILD CARE ACT 1991 S17(1)(B)
CHILD CARE ACT 1991 S18(1)(B)
CHILD CARE ACT 1991 S18(1)(C)
LYNCH, STATE v COONEY 1982 IR 337
MALLACK v MIN FOR JUSTICE 2013 1 ILRM 73 2012 IESC 59
DEPT OF CHILDREN & YOUTH AFFAIRS CHILDREN FIRST: NATIONAL GUIDELINES FOR THE PROTECTION & WELFARE OF CHILDREN 2011 PARA 2.3
RSC O.84 r27(4)
FAMILY LAW
Children
Judicial review of interim care order - Jurisdiction to take children into care - Whether parents failed in parental duty such to warrant care order - Supervision order made - Direction in supervision order that parents must submit to parental capacity assessment valid - Direction in supervision order that mother attend psychotherapy - Failure by parents to comply with supervision order - Factor taken into account when granting subsequent interim care order - Whether proper legal basis for such directions - Whether finding by District Court of emotional abuse valid - N v Health Service Executive [2006] IESC 60, [2006] 4 IR 374; Southern Health Board v CH [1996] 1 IR 219; Western Health Board v KM [2002] 2 IR 493; The State (Lynch) v Cooney [1982] IR 337 and Mallak v Minister For Justice [2012] IESC 59, [2012] 3 IR 297 applied - Wicklow County Council v Fortune [2012] IEHC 406, (Unrep, Hogan J, 4/10/2012); Fitzpatrick v FK [2008] IEHC 104, [2009] 2 IR 7 and Eastern Health Board v Mcdonnell [1999] 1 IR 174 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 84, rr 20(7) and 27(4) - Courts (Supplemental Provisions) Act 1961 (No 39), s 45(1) - Child Care Act 1991 (No 17), ss 12, 17, 18, 19 and 47 - Constitution of Ireland 1937, Articles 15.2, 40.3, 40.4, 40.5, 41, 42, 42.1 and 42.5 - Certiorari granted (2013/688JR - Hogan J - 27/11/2013) [2013] IEHC 533
G(J) v Judge Staunton
Facts: The HSE had become concerned about the welfare of two young children and the District Court had refused to make the care orders sought and instead made supervision orders pursuant to s. 19 Child Care Act 1991. The Judge had found that a failure on the part of the parents to comply with a supervision order played an important part in his conclusion that a s. 17 interim care order should be made. The Judge also found evidence of emotional abuse. The first and second applicants challenged the validity of orders made in the District Court pursuant to the Child Care Act 1991. The Court considered whether there was a proper legal basis for such directions under s. 19 thereof.
Held by Hogan J. that the interim care order would be quashed. The matter would be remitted in its entirety to the District Court. Insofar as the interim care order was premised on the fact that the parents had shown they had no intention of complying with such directions, the order was invalid. It would be a matter for the District Court to consider what steps were required to safeguard the rights of the child.
1. In these judicial review proceedings the first and second applicants (whom I shall describe as either "the parents" or "the H. parents") challenge the validity of certain orders made by Judge Kevin Staunton under the provisions of the Child Care Act 1991 ("the 1991 Act") in respect of two of their children, I., and J. Although these proceedings were held in open court, at the outset I made an order pursuant to s. 45(1) of the Courts (Supplemental Provisions) Act 1961, preventing the identification of I. and J.. It is for these reasons that the identity of the applicants, their location in the State and anything which might identify them (or the identity of any of their other children) has been redacted for the purpose of this judgment.
2. I. and J. are two young boys who are now aged 5 and 4 years of age respectively, Ms. H. is also the mother of two older girls, M, (who is aged 14) and N. (who is aged 13), but Mr. H. is not the father of these girls. (Both Ms. H. and Mr, H. were previously married and then re-married following a divorce).
3. There a rather complex background history to these proceedings. The family first came to the attention of the HSE when M. presented at a local Garda station in September, 2012 alleging that she had been physically beaten by her step-father in the presence of her mother. The Gardaí involved the provisions of s. 12 of the 1991 Act and arranged to have M. examined by a consultant paediatrician. The paediatrician concluded that M. had bruising and linear marks on her body which she thought were consistent with M. having been struck with an instrument.
4. Following a succession of applications to the District Court, that Court ultimately made an order under s. 18 of the 1991 Act on 18 th June, 2013, whereby the two elder girls were taken into care until they attain their majority. This order has been appealed by the parents to the Circuit Court and I have been informed that this appeal is likely to be heard in January, 2014. Nothing in this judgment should be taken as expressing any view as to how that particular appeal should be disposed of.
5. In the light of these events the HSE were naturally concerned about the welfare of the two younger children. An emergency care order was thereafter made by the District Court in respect of the two boys for an eight day period. On 3 rd October, 2012, the District Court made a supervision order in respect of the two boys under s. 19 of the 1991 Act. While the boys were returned to their parents, they were subject to the supervision of the HSE. In the light of certain comments made by M. to her foster-family the HSE then applied afresh to the District Court for interim care orders in respect of the two boys. The orders were duly granted and the boys remained in care from late January, 2013 until 16 th May, 2013.
6. I should pause at this point to say that the parents made an application to me for an inquiry under Article 40.4.2 of the Constitution in respect of the custody of their children. I directed that such an inquiry should commence and after several days hearing in April, 2013, I was informed that the inquiry need not continue any further.
7. On the 16 th May 2013 the HSE made a further application to the District Court for the continuation of care orders on the basis that the young boys remained at risk if they remained in the care of their parents. Evidence was given by the court-appointed guardian ad litem, Ms. D., to the effect that the boys remained at risk if they remained in the care of their parents. The District Court nevertheless refused to make the care orders sought, but instead made supervision orders under s. 19 of the 1991 Act. While the conditions attached to these orders are the subject of a challenge in separate judicial review proceedings (2013 No. 688JR), it will nevertheless be necessary to re-visit the issue of the validity of these conditions at a later stage in this judgment.
8. On 11 th September, 2013, the HSE applied again to the District Court for interim care orders pursuant to s. 17 of the 1991 Act in respect of the two boys. That application was heard in full on 20 th September, 2013, with Ms. D. (as guardian ad litem) and Ms. R. (a HSE social worker) giving evidence in support of the application. Following legal argument on the subsequent days, judgment was reserved by District Judge Staunton until 21 st October, 2013. On that day the Court made an interim care order pursuant to s. 17(1) of the 1991 Act in respect of the two boys and this order was originally due to expire on 14 th November, 2013. On Friday, 25 th October, 2013, this Court (Butler J.) granted the applicants leave to apply for judicial review and the effect of the order was stayed by Butler J. pursuant to the terms of O. 84,20(7). These judicial review proceedings were then heard on an expedited basis by this Court and by agreement the potential operation of the care order was postponed to today, 27 th November, 2013, in order to facilitate the preparation of this reserved judgment.
9. The entire jurisdiction to take children into care derives from Article 42.5 of the Constitution which provides that:
"In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child."
10. It is true that the right and duty of the parents to provide for the education and upbringing...
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