K.A. v Health Service Executive and Others

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Iseult O'Malley
Judgment Date03 July 2012
Neutral Citation[2012] IEHC 288
Docket Number[2012 No. 1268 SS]
Date03 July 2012

[2012] IEHC 288

THE HIGH COURT

[No. 1268 S.S./2012]
A (K) v Health Service Executive (HSE)
IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

K.A.
APPLICANT

AND

HEALTH SERVICE EXECUTIVE
RESPONDENT
AND IN THE MATTER OF C.A. AND R.A., MINORS

CONSTITUTION ART 40.4

CHILD CARE ACT 1991 S17

CHILD CARE ACT S18.1

CONSTITUTION ART 41

CONSTITUTION ART 42

H(J), IN RE 1985 IR 375

NORTH WESTERN HEALTH BOARD v W (H) 2001 3 IR 622

O'H v HSE 2007 3 IR 177

CAFFREY v GOVERNOR OF PORTLAOISE UNREP 1.2.2012 2012 IESC 4

D v G & ORS 1990 1 IR 305 1990 ILRM 130 1989/5/1176

FOYLE HEALTH & SOCIAL SERVICES TRUST v C (E) & C (N) UNREP MACMENAMIN 21.1.2008 2006 IEHC 448

R v BIRMINHAM CITY JUVENILE COURT1988 1 WLR 337

B, IN RE (MINORS) 3 WLR 1

GUARDIANSHIP OF INFANTS ACT 1964 S3

CONSTITUTION ART 42.5

N (E) & N (MLN) v HSE & ORS 2006 4 IR 374

FAMILY LAW

Children

Child care - Welfare of child - Extension of interim care orders - Objection to extension - Absence of oral hearing - Presumption that welfare of child met within family - Whether custody unlawful - Whether extension orders invalidly made - Whether interim care order could be made in absence of evidence - Whether judge entitled to take account of evidence given on previous occasions - In re JH (An Infant) [1985] IR 375 and N v Health Service Executive [2006] IESC 60, [2006] 4 IR 374 followed - Child Care Act 1991 (No 17) - Guardianship of Infants Act 1964 (No 7), s 3 - Constitution of Ireland 1937, Articles 40.4, 41 and 42 - Extension orders invalid (2012/1268SS - O'Malley J - 3/7/2012) [2012] IEHC 288

A(K) v Health service Executive

Facts: The applicant was the mother of two children, CA and RA. They had been taken into care in July 2011 on an emergency care basis. The initial period of care had been extended by interim care orders on a number of dates, on occasion by consent. The latest extension was ordered in June 2012, and the applicant sought to complain under art 40.4 of the Constitution to the objection.

Held by O'Malley J, that the applicant sought to object to the latest extension, on the ground it had been made without any oral evidence being heard. Counsel for the applicant submitted that interim care orders could only be issued on the basis of evidence displacing the constitutional presumption the child's welfare was best served by family care. The parties disputed whether such evidence had been before the District Court.

The Court considered that the District Judge did not have to reconsider the matter wholly on each application for an extension, but was entitled to rely on their recollection of the evidence thus far. However, the District Judge was required to apply a test as to the children's welfare on the circumstances as they stood at the time of application for an extension, and this would normally require oral evidence. Counsel's statement as to disputed facts could not suffice in lieu of evidence.

The Court therefore held that the extension orders of June 2012 were invalid, but given the Court's duty of care to the children invited submissions from the parties as to the next steps in the matter.

1

JUDGMENT of Ms. Justice Iseult O'Malleydelivered on the 3rd day of July, 2012

Introduction
2

1. The Applicant in these proceedings is the mother of C.A., aged 12, and R.A., aged 10 and she makes a complaint under Article 40.4 of the Constitution on their behalf. Both children have been in the care and legal custody of the Respondent since the 19 th July, 2011, initially on foot of emergency care orders and thereafter on foot of a series of extensions of interim care orders made pursuant to the provisions of the Child Care Act 1991, as amended. On some occasions there was consent to the extensions. On others there was not and extensive hearings were undertaken. The most recent such extension order was granted on the 21 st June, 2012 and by its terms extends the period of the interim care order for the further period of twenty-eight days to the 19 th July, 2012. It is with the validity of that order thatthese proceedings are concerned.

3

2. There is an extant application for full care orders which has yet to come on for hearing.

4

3. The ex parte application to this Court was made on the 27 th June, 2012 and the full hearing was on the 29 th June. The Notice Parties, on the suggestion of the Applicant and by direction of the Court, are the children's guardian ad litem, Ms. McCluskey, and Mr. A.G. who has recently been established to be the father of R.A.

5

4. The essential point at issue is that, in circumstances where the Applicant was objecting to the extension, it was granted in the absence of any oral evidence.

5. The Legislation
6

6. Section 17 of the Child Care Act 1991, as amended, provides as follows:-

7

(1) Where a justice of the District Court is satisfied on the application of the Health Service Executive that-

8

(a) an application for a care order in respect of the child has been or is about to be made (whether or not an emergency care orders in force), and

9

(b) there is reasonable cause to believe that any of the circumstances mentioned at paragraph (a), (b) or (c) of section 18(1) exists or has existed with respect to the child and that it is necessary for the protection of the child's health or welfare that he be placed or maintained in the care of the Health Service Executive pending the determination of the application for the care order,

10

the justice may make an order to be known and in this Act referred to as an 'interim care order'.

11

(2) An interim care order shall require that the child named in the order be placed or maintained in the care of the Health Service Executive -

12

(a) for a period not exceeding twenty-eight days, or

13

(b) where the Health Service Executive and the parent having custody of the child or person acting in loco parentis consent, for a period exceeding twenty-eight days,

14

and an extension or extensions of any such period may be granted (with the consent, where an extension is to exceed twenty-eight days, of the persons specified in paragraph (b)) on the application of any of the parties if the justice is satisfied that grounds for the making of an interim order continue to exist with respect to the child."

15

7. The circumstances mentioned in s. 18(1) are that:-

16

(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or

17

(b) the child's health, development or welfare has been or is being avoidably impaired or neglected, or

18

(c) the child's health, development or welfare is likely to be avoidably impaired or neglected, and that the child requires care or protection which he is unlikely to receive unless the court makes a care order.

The Evidence
19

8. There are some factual discrepancies in the affidavits but these do not require to be resolved for the purpose of this application. What is clear is that on the 21 st June the learned District Judge presiding over the Family Law List informed the parties at the call over that a judge would be available to hear the substantive application for full care orders pursuant to s.18 for a two week period from the 16 th July. It was thereupon indicated by counsel for the Applicant herein that she would not oppose an extension of the interim care orders pending that full hearing. However when the case was called again counsel for the Respondent told that Court that the HSE did not want a hearing date as yet as the assessment of Mr. A. G and his home circumstances was not complete. Counsel said that meetings in this regard were scheduled in the next fortnight but that reports would then have to be written up and the casewould not be ready to proceed on the 16 th. In the meantime the HSE was applying for an extension of the interim orders. This application was supported by the representatives of Mr. A.G. and the guardian ad litem. There followed what has been described as "a vigorous exchange of submissions", with counsel for the Applicant maintaining that there was no need to delay matters further. According to the detailed attendance taken by the Respondent's solicitor, exhibited in the affidavit of Ms. W, social worker with the HSE, the judge noted that there was an application for an extension and asked was there an objection. Counsel for the Applicant said that there was. The judge "said he does not have time". It is further clear that Counsel expressly withdrew consent to any extension unless the hearing date of the 16 th July was confirmed. The learned judge adjourned the matter to the 19 th July and granted the extensions.

20

9. According to the solicitor's attendance, Counsel for the Respondent gave the judge certain information verbally, mainly in relation to the progress being made with various channels of enquiry. He referred to but, objection being taken to hearsay, did not open a report from a Dr. Bownes. He told the judge that "there has been further information causing concerns and the social work report set out the background. He said the fundamental concerns still remained and...

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