K.W. v Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 23 January 2018 |
| Neutral Citation | [2018] IEHC 23 |
| Docket Number | 2016 No. 148 JR |
| Court | High Court |
| Date | 23 January 2018 |
and
[2018] IEHC 23
2016 No. 148 JR
THE HIGH COURT
Practice & Procedure - Judicial review - Child and Family Agency (CFA) - Award of damages - Certiorari - Injunction - The Child Care Act 1991 - Mootness - O. 84, r. 25 of the Rules of the Superior Courts 1986
Facts: The applicants originally sought various reliefs, primarily an order of certiorari for quashing the District Court order for granting interim care of the applicants' child. However, the applicants later on consented to such an order and agreed for the placement of their other children in the care of Child and Family Agency ('CFA'). The sole issue that now remained was the damages for the stress suffered by the applicants.
Mr. Justice Max Barrett refused the relief sought. The Court held that none of the issues were live and they had become moot. The Court pointed out that since the applicants' own conduct was responsible for the stress, they were not entitled for damages. The Court found that the CFA's concern was genuine and it helped the applicants to raise their children in a better way.
The applicants are United Kingdom nationals. The second-named applicant has three children. Her eldest child has been adopted through the courts of England and Wales following an assessment by that jurisdiction's social services authorities. Her second-eldest child resides with that child's father. Her youngest child (Z) was born on 6th December, 2015. Z's father is the first-named applicant; he is not the father of the second-named applicant's older children.
Immediately prior to November 2015, the applicants were residing together in Wales. At the time the second-named applicant was pregnant. There was some engagement with the Welsh Children's Services regarding the then-imminent arrival of Z. On 11th November, 2015, following a pre-birth assessment, the applicants were advised by the Welsh Children's Services of the latter's intention to commence legal proceedings to have Z placed into foster-care from birth.
At some point after 11th November, 2015, the applicants left Wales and came to Ireland. On 24th November, 2015, a duty social worker employed by the Child and Family Agency ("CFA") in the south- east of Ireland received a call from the Welsh Children's Services, a government body which appears to perform a function in Wales akin to that discharged by the CFA in Ireland. The caller advised the CFA that the applicants were believed to have arrived recently in the south- east of Ireland. The social worker was told that the second-named applicant was heavily pregnant and was advised of the concerns of the Welsh Children's Services in relation to the health and future welfare of Z (then unborn).
Following the just-mentioned telephone call, a strategy meeting was convened at the local hospital on 30th November, 2015. This meeting was attended by members of An Garda Siochána, representatives from the staff of the hospital, and members of the CFA. Among the matters discussed were the risks and child-protection concerns that had been identified by the Welsh Children's Services. At the conclusion of this meeting it was decided, inter alia, that due to child protection concerns, the CFA would make application for an Emergency Care Order as soon as practicable after the birth of Z.
On 6th December, 2015, Z was born. On 7th December, 2015, an application was made by the CFA to the District Court for an emergency care order, which order was granted. On 8th December, 2015, a social worker arrived at the hospital where Z was born to find that the second-named respondent appeared to have left. Z was then discharged into the care of the second-named respondent. The social worker left a letter for the applicants informing them of their right to consular assistance and advising that she would be in contact with the applicants, unless they did not want such contact.
On 9th December, 2015, the applicants were advised in writing by the CFA to obtain legal advice and provided with the contact details of a couple of legal aid centres. They were also advised of their right to seek copies of correspondence and reports held by the CFA in relation to Z and provided with a related information leaflet and application form.
On 14th December, 2015, the CFA made an application to the District Court for an interim care order, which application was successful, an interim care order being made to 7th January, 2016, and extended thereafter. On 21st December, 2015, the applicants applied for and were granted leave to seek judicial review in respect of the decision of the learned District Judge.
On 16th February, 2016, counsel for the CFA advised the High Court that it would not oppose the judicial review application because of certain concerns regarding the learned District Judge's decision. The court was further advised that the CFA intended to make a fresh application for an emergency care order on 18th February, 2016. The High Court (Noonan J.) made an order quashing the decision of the learned District Judge; however, this order was stayed until mid-morning on 18th February, 2016.
On 18th February, 2016, the CFA made a fresh application before the District Court. Although the application was opposed by the applicants, the order sought was granted by the District Judge. Both applicants declined to give evidence; however, they availed of the opportunity to cross-examine a social worker who gave evidence.
On 25th February, 2016, the CFA made an application before the District Court for an interim care order. This application was likewise opposed by the applicants; however, the order was granted by the District Judge. Both applicants declined to give evidence; however, they availed of the opportunity to cross-examine a social worker who gave evidence.
It is perhaps useful to note that although the CFA's views were initially informed exclusively by what it had been told by the Welsh Children's Services, the social worker directly involved with the applicants had by this time formed her own professional opinion of the applicants and the implications that she perceived to present as regards Z. Thus, this social worker avers in an affidavit of 7th April, 2016:
' In light of my dealings with the Applicants, coupled with the information provided to me by…[the Welsh] Children's Services, I remain of the view that there is a real risk…[that Z's] health, development and welfare is likely to be avoidably impaired or neglected if he was to be returned to the care of the Applicants. I remain of the view that [Z]… requires care and protection which he is unlikely to receive if he was to be returned to the care of the Applicants….
I have met with the Applicants on a number of occasions. I have formed my own views on their behaviour and parenting capacity from these meetings….
The applicants have been afforded ample opportunity to discuss their concerns with me regarding the accuracy of the information provided to me by…[the Welsh] Social Services and/or to respond to or address these concerns….
Every attempt has been made to work with the Applicants. At all material times hereto, the actions taken by the Respondent and, in particular, the decision to apply for an ECO [emergency care order] and ICO [interim care order] were motivated by concerns for the health, development and welfare of Z'.
On 7th April, 2016, following a 5½ hour hearing before the District Court that lasted until 20:30 (which hearing concerned the proposed extension of the interim care order) the applicants consented to an extension of the then extant interim care order to 11th April. Between 10:30 to 13:00 on that later date, the hearing resumed. At the end of that hearing the District Judge concluded that there were serious issues presenting, extended the interim care order and made various directions, including that there be an independent Forensic Parenting Capacity Psychological Assessment of the applicants.
From December 2015 through to end-July 2016, the CFA were in regular contact with the applicants. The applicants were kept informed by the Agency of the approach being taken by it vis-à-vis the applicants, and there were bi-weekly access visits arranged between the applicants and Z. By July 2016 the plan was gradually to transition Z back to the care of the applicants. This appears to have been in train, with application being made for a supervision order in September 2016. That supervision order was refused and promptly thereafter the applicants returned with Z to the United Kingdom. Since returning to the United Kingdom, the applicants have had a further child; as of the date of hearing, both Z and that further child were the subject of interim care orders in the United Kingdom.
Arising from the foregoing, the applicants have come to court seeking the following reliefs: (i) an order of certiorari in respect of the issuance of an interim care order by the District Court on 25th February, 2016; (ii) an interlocutory mandatory injunction in respect of the said interim care order; (iii) an interlocutory mandatory injunction in respect of the applicants' daily access to Z; (iv) a permanent mandatory injunction ' in respect of the seeking of further Care Orders under the Child Care Act 1991 by…[the] CFA whereby the child is held outside of his birth family unit'; (v) a mandatory injunction in respect of the seeking of an order moving jurisdiction of this matter to the United Kingdom; (vi) enforcement of the rights of Z and his parents under Arts 5-9 (inclusive) of the European Convention on Human Rights; (vii) damages in respect of (alleged) violations of the rights of Z and his parents under the said...
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C.K. v The Child and Family Agency
...would infringe the separation of powers. Reliance is placed in this regard on dicta of Barrett J. in KW v. Child and Family Agency [2018] IEHC 23, at para. 19 where he observed:- “What is sought in this regard is that the court in effect undo what the Oireachtas has done, withdrawing powers......