L.S.M. (a minor suing through her mother and next friend K.M.) v The Child and Family Agency

JudgeBirmingham P.
Judgment Date05 December 2018
Neutral Citation[2018] IECA 385
Date05 December 2018
CourtCourt of Appeal (Ireland)
Docket NumberNeutral Citation Number: [2018] IECA 385 [2018 No. 377]

[2018] IECA 385


Birmingham P.

Birmingham P.

Edwards J.

McCarthy J.

Neutral Citation Number: [2018] IECA 385

[2018 No. 377]


Family – Children – Infant taken into care – Challenge seeking release of infant from case

Facts: The applicant was born in June 2018 to a woman who had been engaging with the Child and Family Agency. Following on-going concerns about the welfare of the applicant, she was made subject to an emergency care order. The applicant’s mother sought to compel the release of the applicant under art 40.4 of the Constitution, but the High Court refused to make the order sought. The matter now came on appeal.

Held by the Court, that the appeal would be dismissed. Whilst the Court would not have placed reliance on certain earlier case law in the manner the High Court Judge did, the Court was satisfied that the outcome would be the same and the application under art 40.4 should be refused.

JUDGMENT of the Court delivered on the 5th day of December 2018 by Birmingham P.

This is an appeal from the judgment of Humphreys J. delivered on 11th September 2018 which dealt with an unsuccessful application under Article 40.4 of Bunreacht na hÉireann for the release of LSM from the custody of the Child and Family Agency (“CFA”).


The applicant child was born on 5th June 2018 to KM, a young woman of twenty years. From 11th June 2018 and 29th August 2018, both infant and mother resided in a parent and child unit. LSM was initially taken into care on foot of an Emergency Care Order under s. 13(1) of the Child Care Act 1991 made by Judge King on 29th August 2018. This order was to last for an eight-day period. Subsequently, on 5th September 2018, an Interim Care Order was granted by Judge Ní Chondúin in the District Court. On the following day, the appellant, through her mother, sought an inquiry into the validity of her being taken into care.

Background to the Proceedings

The CFA had what are said to be ‘very serious and significant concerns’ about KM's mental health and welfare. The mother had herself been in the care of the CFA between the ages of thirteen and eighteen due to risk-associated behaviours. During that time, she was subject to secure care orders on a number of occasions. It was noted that KM was a vulnerable individual and prone to putting herself in risky situations. KM was also the beneficiary of an aftercare program in which she moved to what is known as “Intensive Community Programme Care” and received a community support package.


In May 2018, KM took part in a pre-birth Child Protection Case Conference where it was agreed that the then unborn LSM was at risk in utero and would be subject to an ongoing risk of significant harm upon birth unless a child protection plan was put in place. The then unborn LSM was registered on the Child Protection Notification System. The CFA arranged for KM to attend for residential assessment at the aforementioned parent and child unit so as to assess her capacity to adequately provide for and protect her child. Although this was agreed by all present, it was said that if KM did not agree that the CFA would take steps to obtain a care order with respect to the unborn LSM.


There appear to have been a number of issues during KM and LSM's time in the Parent and Child Unit which is outlined in the CFA Social Work Court Report dated 3rd September 2018. These included problems with other residents as well as periods of absence away from the unit. All of this culminated on 28th August 2018 when KM is said to have had an adverse reaction to negative feedback from staff which resulted in staff forcing entrance into her room in order to confirm the safety of the child. She is said to have threatened to leave her child in care and leave the unit. At one point, KM did, in fact, leave the unit without her daughter only to return at a later stage that same evening. On 29th August 2018, the parent and child unit indicated to the Social Work Department that KM and LSM's placement was no longer viable in circumstances where the mother had failed to engage meaningfully with staff. The decision was then made to seek an Emergency Care Order in respect of the infant and terminate the assessment eleven months into the sixteen-month period that had been agreed.


The substantive application for an Interim Care Order came before Judge Ní Chondúin on 5th September 2018. The Emergency Care Order which had been made by Judge King was to expire at midnight on that day. From the District Court transcript, it appears that the proceedings there ran late into the evening with the Judge becoming concerned that she and the parties to the proceedings would be locked into the courtroom, it seems that something of that nature had happened on a previous occasion. At the point at which these concerns were expressed and the order made, the application and KM's response to same had only been partially heard. It was suggested by Counsel for KM that LMS might be released into the custody of her maternal grandparents on a consent basis, but this was not considered appropriate by the Court. Counsel for the mother suggested that there might be an issue as to whether Judge Ní Chondúin had jurisdiction to make the order she was considering when the proceedings had not concluded. Judge Ní Chondúin, nevertheless, issued an Interim Care Order and made the matter returnable for 17th September 2018, commenting ‘[the CFA] are concerned. I am going to grant the order and if you feel I have exceeded my jurisdiction, you know where the High Court is’.


On 17th September 2018, the matter resumed before Judge Ní Chondúin when the remaining evidence of the CFA was heard. On this occasion, too, the proceedings did not come to a natural conclusion. The proceedings were interrupted before there was an opportunity to cross-examine the CFA's last witness, a social worker, as time ran out once more. Judge Ní Chondúin stated that she was satisfied with the evidence that she had heard and that it was such that she should extend the Interim Care Order until 24th September 2018. She had initially proposed putting the matter back for three days, but this suggestion did not find favour with Counsel for the mother as what was being proposed was inconvenient for him. Following this, another Article 40.4 application was made before Barnivlle J. on 19th September and refused.


The application for a further extension of the interim care order came before Judge Ní Chondúin on 24th September 2018. The social worker was cross-examined on this date. KM did not go into evidence, but made legal submissions that the threshold for the making of a care order had not been meet. Judge Ní Chondúin found that the threshold had been met, extending the Interim Care Order until 22nd October 2018 and listing the substantive care order matter for hearing on 4th and 5th October 2018.

Judgment of the High Court

The High Court was faced with two key issues. First, there was the allegation that there had been a fundamental denial of justice due to the late delivery of the materials being relied upon by the CFA. Under O. 84, r. 9 of the District Court Rules (as amended), the grounding affidavits and any associated exhibits must be served at least two days prior to the date fixed for hearing the s. 17 application. KM stated that the two reports relied upon by the CFA in this case were not so served. The first report, authored by a social worker and which extended to some thirty pages, was not served until 4th September 2018, just a day before the hearing was set to take place. The second report, nine pages in length, was not served until the morning of 5th September 2018 i.e. the day of the hearing itself. It was submitted that this amounted not only to a breach of the District Courts Rules, but also KM's right to fair procedures in dealing with the application in line with S. McG v. Child and Family Agency [2017] 1 IR 1. Humphreys J. highlighted that this claim to a breach of fair procedures was a novel one and had not been raised before the District Court. Although the fact of non-compliance with time limits was brought to the attention of the District Court, it was for the purpose of seeking a dismissal of the proceedings rather than for the purpose of seeking an adjournment so as to allow the necessary time to prepare for a full hearing. As such, it was held that the objection was legalistic in nature and was not of the kind envisaged in the S.McG case.


Second, KM submitted that there had been a breach of fair procedures or a want of jurisdiction as Judge Ní Chondúin issued an order without hearing all of the evidence. Humphreys J. considered that s.17 of the 1991 Act allows for the making of an Interim Care Order where the court in question is satisfied of certain matters. This satisfaction must emerge from a process that respects fair procedures. The question then became whether it was in accordance with fair procedures to make an order in circumstances where time had run out before all the evidence had been heard. Humphreys J. found, in line with the decision of O'Higgins CJ. in The State (Lynch) v. Cooney [1982] IR 337, that a ‘practical and pragmatic’ solution where time was of the essence which resulted in the modification of fair procedures was not a breach of the principle per se. This, he concluded, was what had occurred here. The test was one of proportionality. It was held that fair procedures were not breached in a case such as this where time necessitated a truncated process.

Grounds of Appeal

KM has advanced a number of Grounds of Appeal which may be categorised as follows:

(i) That the failure to furnish evidence to the applicant within the required timeframe constituted a breach of fair...

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