L.S.M. (A Minor) v The Child and Family Agency
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 11 September 2018 |
| Neutral Citation | [2018] IEHC 500 |
| Docket Number | [2018 No. 1129 S.S.] |
| Date | 11 September 2018 |
[2018] IEHC 500
THE HIGH COURT
IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4.2° OF THE CONSTITUTION
Humphreys J.
[2018 No. 1129 S.S.]
Release from custody – Breach of fair procedures – Want of jurisdiction – Applicant seeking an order under Article 40.4 of the Constitution for release from the custody of the respondent – Whether there was a breach of fair procedures or want of jurisdiction due to the District Court issuing an order without hearing all the evidence
Facts: The applicant applied to the High Court seeking an order under Article 40.4 of the Constitution for release from the custody of the respondent, the Child and Family Agency. The applicant alleged: (i) a fundamental denial of justice due to late delivery of materials; and (ii) a breach of fair procedures or want of jurisdiction due to the District Court issuing an order without hearing all the evidence.
Held by Humphreys J that the first objection was something of a legalistic one and did not meet the fairly high benchmark of a fundamental denial of justice as set out in S McG v Child and Family Agency [2017] IESC 9. Humphreys J held that Judge Ní Chondúin’s order was pragmatic and wise, having considered the doctrine that arises from The State (Lynch) v Cooney [1982] IR 337.
Humphreys J held that there would be an order under s. 45 of the Courts (Supplemental Provisions) Act 1961 that there be no publication of material tending to identify the applicant, her mother or other family members and that the application be dismissed.
Application dismissed.
The applicant's mother is a twenty-year-old woman who was in the care of the Child and Family Agency between the ages of thirteen and eighteen. Some of that time was spent in secure care. The concerns of the Child and Family Agency in relation to the mother are documented in the reports exhibited, and they include substance misuse, mental health issues, emotional and behavioural difficulties, risk-taking, physical aggression, self-harm and offending behaviour.
The applicant was born on 5th June, 2018. The applicant's father has not been involved in the proceedings. Between 11th June, 2018 and 29th August, 2018 the applicant resided with her mother in a mother and baby home. On 29th August, 2018, due to concerns on the part of the agency, an application was made to the District Court before Judge John King, who granted an emergency care order under s. 13(1) of the Child Care Act 1991 for an eight-day period. The agency then sought an interim care order. While under O. 84 r. 9 of the District Court Rules the application was required to be made two days in advance, the agency's reports were not furnished to the applicant's lawyers until 4th September, 2018. The application was made on 5th September, 2018 and came before Judge Aingeal Ní Chondúin. On that occasion oral evidence was heard from Ms. Marie O'Riordan, a unit manager of the mother and baby home, who was fully cross-examined on behalf of the applicant. Evidence then commenced from Dr. Calem De Burca, Head and Clinical Lead of Family Treatment and Assessment Services at the home, but time did not permit that to be completed.
I have had the benefit of the digital audio recording of the District Court hearing and what happened was that, at that point in the evening, Judge Ní Chondúin said ‘ I'm sorry, I'm not going to continue hearing, it is impossible to continue at this stage. I'm going to give it the earliest possible date’. There was then an exchange with lawyers, during which counsel for the applicant suggested that the applicant should be left with the maternal grandparents. Judge Ní Chondúin then replied ‘ I have concerns, but I have only heard one part of the story and I feel I have no choice but to issue an interim care order to the earliest possible date’. Counsel for the applicant then submitted that such an order was outside the court's jurisdiction because the proceedings had not been concluded and said ‘ I am not aware of any legal vehicle that allows for such a cause of action’. Judge Ní Chondúin then replied ‘ Well, if there isn't, there is always a first time. This is about a child. I'm not concerned about anybody else. The wellbeing of a child … I am going to grant the order and if you feel I have exceeded my jurisdiction, you know where the High Court is. Monday 17th September’.
The applicant now seeks an order under Article 40.4 of the Constitution for release from the custody of the agency. I have received helpful submissions from Ms. Sunniva McDonagh S.C. (with Mr. Pádraig Langsch B.L.) for the applicant and from Ms. Aoife McNickle B.L. for the agency.
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...[1982] 1 IR 337. Counsel fairly points me to the recent judgment of Humphreys J. in L. S. M. (A Minor) v. The Child and Family Agency [2018] IEHC 500, where he held that the making of a short term order, in that case for a period of twelve days, in circumstances where some but not all of th......
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...of note, is the recent decision of Humphreys J. delivered on 11th September, 2018 in L.S.M. (A Minor) v. Child and Family Agency [2018] IEHC 500. There, an allegation had been made that there was a fundamental denial of justice within the meaning of the doctrine established in S.McG. becau......