L v Child and Family Agency (Otherwise Tusla)

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Faherty
• Judgment Date: 17 July 2024
• Neutral Citation: [2024] IECA 187
• Docket Number: Record Number: 2023/89

Between/

L

Applicant/Appellant

and

Child and Family Agency

Respondent

[2024] IECA 187

Whelan J.

Faherty J.

Allen J.

Record Number: 2023/89

THE COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Faherty delivered on the 17 ^th day of July 2024

1 . This is the applicant's appeal against the judgment ( [2023] IEHC 17) and order of the High Court (Hyland J.) dated 2 March 2023 (perfected 24 March 2023) refusing the applicant leave to apply for judicial review and where leave was granted, refusing relief by way of judicial review. The applicant is a grandmother to four children who were taken into the care of the respondent in July 2015 pursuant to the provisions of the Child Care Act 1991 (“the 1991 Act”). It should be noted, at this juncture, that by the time of the within appeal hearing, the eldest child had attained their majority and the second child was within a few months of obtaining their eighteenth birthday. Thus, for all intents and purposes this appeal concerns the two younger grandchildren who are now both in their mid-teens.

Background

2 . On 10 July 2015, by way of ex parte application, the respondent applied pursuant to s.13 of the 1991 Act that the children be received into the care of the respondent on foot of an Emergency Care Order (“ECO”). At the time of the ECO application, the children were aged between 10 and 6 years. They had arrived in this jurisdiction in December 2014 in the company of their mother (a named respondent in the care proceedings along with the father of the two elder children and the father of the other two children) from a third country, having previously resided in the UK. It is common case that upon their arrival in the jurisdiction, the mother and the children resided with the applicant for a period of about a month, thereafter moving to their own accommodation.

3 . On 17 December 2014, a local authority in the UK was granted permission by the UK courts to share papers relating to the children with the Irish authorities. According to the affidavit evidence in the within proceedings of the social worker allocated by the respondent to the case (hereinafter “the allocated social worker” or “the social worker”), an allegation of child sexual abuse made by one of the children against [a named family member] was upheld in a finding of fact hearing in the UK in June 2015.

4 . The evidence given by the allocated social worker in the District Court on 10 July 2015 was that by the time of the application for an ECO, the respondent had concerns about the safety of the children on the basis of the finding by a UK court that one of the children had been sexually abused, the fact that the family had given inconsistent accounts of the perpetrator's movements and access to the children, and behaviour by the children's mother which in the opinion of the social worker was not sufficiently protective. The District Court was satisfied that the threshold for an ECO was met and made an order in respect of each of the four children.

5 . Also on 10 July 2015, on the application of the respondent's solicitor, the District Court made an order under s.47 of the 1991 Act dispensing with the requirement that an authenticated note of the oral evidence in the District Court be served on the respondent mother in the care proceedings.

6 . Following the children being brought into care, the applicant sought access to the children. This access request is the subject of copious email correspondence which passed between the applicant and the respondent over the course of 2015–2018. The correspondence also bears witness to the fractious relationship that has unfortunately developed as between the applicant and the respondent. A constant theme in the applicant's emails is her contention that the respondent was refusing to allow her access to the children because of a particular lifestyle choice favoured by the applicant, something the respondent has consistently denied. The emails also queried why she had been excluded from the care plans drawn up by the respondent for the children and the same correspondence details numerous complaints made by the applicant about named personnel within the respondent and the guardian ad litem subsequently appointed for the children.

7 . On 16 July 2016, interim care orders were made pursuant to s. 17 of the 1991 Act and were subsequently extended periodically.

8 . It would also appear that on 21 September 2017, in the course of an application to extend the interim care orders, the District Court made an order prohibiting the applicant from communicating with the guardian ad litem without the consent of the court. The respondent did not apply for this order. Rather, the application was made by the guardian ad litem's solicitor. No copy of the said order, if it exists, has been produced before the High Court or this Court. The fact that such an order was made without the applicant having been put on notice of same and that a similar order was obtained by the respondent in January 2018 is a constant theme of the applicant's correspondence with the respondent and a matter of grievance in these proceedings.

9 . On 7 December 2017, an application for access to the children by the applicant pursuant to s. 37 of the 1991 Act came before the District Court but was adjourned. This application was subsequently withdrawn by the applicant.

10 . As just mentioned, on 25 January 2018, in the course of an application to extend the interim care orders, on the application of the respondent, the District Court made an order pursuant to s.47 of the 1991 Act directing the applicant not to make contact with the children without the consent of the respondent. A copy of the District Court order of 25 January 2018 was furnished to the applicant under cover of a letter of 1 February 2018.

11 . On 25 June 2018, care orders were made pursuant to s.18 of the 1991 Act in respect of the children for three years.

12 . In 2018, the applicant applied pursuant to s.37 of the 1991 Act for access to her grandchildren. On 15 November 2018, her two access applications were heard and determined by the District Court. The applications were refused on the basis that granting the applicant access was not in the children's best interests, and that the applicant would need to engage with the respondent and the guardian ad litem before access could commence. The applicant duly appealed to the Circuit Court.

13 . On 30 May 2019, the Circuit Court confirmed the guardian ad litem's appointment for the purpose of the appeal and directed, inter alia, that he furnish a report “with regard to the proposal of access by the Applicant and the general welfare of the children…”.

14 . On 20 February 2020, the applicant's appeal came on for hearing before the Circuit Court. By then the Circuit Court had the report prepared by the guardian ad litem and, it appears, also the report which the allocated social worker had prepared for the District Court in 2018.

15 . The social work report stated that the respondent did not “currently” recommend that the applicant would have access with her grandchildren but that should she “engage meaningfully” with the respondent (which, it was said, she had not done to date) it was hoped that the applicant could be safely re-introduced into the children's lives. The report went on to refer to the order made by the District Court on 25 January 2018 directing that the applicant not have any direct or indirect contact with the children without the consent of the respondent. It referred to the applicant having presented on 29 January 2018 in the neighbourhood where the foster carers to two of the children resided and that she had identified herself to neighbours as the grandmother of said children and that they were in care. The report also chronicled various events that were said to have occurred on a visit by the applicant to the respondent's premises on 29 January 2018. Another matter referred to was that before Christmas 2017, the applicant had arranged for one of the older children to be given the respondent's handbook which, the report said, had disturbed the child in question who believed that the applicant was trying to get her to say “bad things” about her foster carers. There was also reference to a number of other matters relating to the applicant which, it was said, were of concern to the respondent.

16 . The report also stated that the applicant “has historically never believed” the sexual abuse allegations made by her grandchild in the UK (which had been later confirmed in a “Finding of Facts” hearing in the UK) and that she had described the child as “manipulative” and who should not be trusted. This, it was said, had caused the child “great distress in the past and [is] something that she continues to display some anxiety around”. As of November 2018, it was not clear to the author of the report what the applicant's views were in relation to her grandchild's allegation of sexual abuse or whether she would be able to offer the child the emotional reassurance and support she required.

17 . The social work report's conclusion was that the applicant's “continued interference with the children's care and unwillingness to engage with Tusla is causing disruption to the children's placements”. She had refused to engage with the respondent “whilst simultaneously adopting an approach focused on discrediting the professionals working with the family”.

18 . Having met with the children prior to the completion of his report, in his report of 14 January 2020 the guardian ad litem updated the Court on the children's living and school arrangements and advised that supervised access was taking place fortnightly with their mother at which other family members also attended. As regards the applicant, he reported that “at the most basic level all 4 children are willing to get to know their grandmother”. There...