LL v The Child and Family Agency

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 16 January 2023
• Neutral Citation: [2023] IEHC 17
• Court: High Court
• Docket Number: Record No. 2020/326JR

Between

LL

Applicant

and

The Child and Family Agency

Respondent

[2023] IEHC 17

Record No. 2020/326JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Access – Care order – Applicant challenging orders concerning her access to her grandchildren – Whether a more appropriate alternate remedy was available

Facts: The applicant applied to the High Court seeking to challenge five separate decisions of the District Court and one decision of the Circuit Court. Chronologically, the reliefs sought were as follows: a declaration that the emergency care order of 10 July 2015 infringed her constitutional rights to her good name and fair procedures; an order of certiorari of the order of District Judge Coughlan of 21 September 2017 prohibiting the applicant from contacting the guardian ad litem appointed to represent the views of her grandchildren; an order of certiorari of the order of District Judge Coughlan of 25 January 2018 under s. 47 of the Child Care Act 1991 prohibiting the applicant from contacting her grandchildren without the consent of the respondent, the Child and Family Agency (CFA), and prohibiting contact with the guardian ad litem; two orders of certiorari of the orders of District Judge Jones of 15 November 2018 refusing applications for access made pursuant to s. 37(2) of the 1991 Act; and an order of certiorari of the order of Circuit Judge O’Malley Costello of 20 February 2020 affirming the decision of the District Court of 15 November 2018.

Held by Hyland J that the applicant was significantly out of time to seek relief in respect of the order of 10 July 2015 and that no basis for an extension of time had been identified. Hyland J was satisfied that the applicant did not have any good or sufficient reason for her delay in challenging the order of 21 September 2017 until leave was sought in May 2020. Hyland J noted that an order was made by the District Court on 25 January 2018 that set out explicitly that the applicant was not to contact the guardian or the children without the leave of the Court; the order of 25 January 2018 therefore overtook the order of 21 September 2017, and as such an order of certiorari for the former would necessarily be futile. Hyland J could see no good or sufficient reason outside of the control of the applicant that prevented her from seeking judicial review within time and refused to grant an extension in respect of the order of 25 January 2018. Hyland J held that the challenge was moot due to the fact that the order was replaced by the orders made in November 2018 pursuant to the applicant’s s. 37(2) challenge. Hyland J noted that the only argument identified by the applicant for her delay in bringing an application in respect of the orders of 15 November 2018 was that she instead decided, given judicial review is a procedural remedy which could not yield an access order, that an appeal to the Circuit Court would be more appropriate to achieve her goal of gaining access. Hyland J found that the fact that things did not work out the way the applicant hoped in the Circuit Court appeal could not be used as a reason to permit her to revisit the order she appealed against by way of judicial review; in any case, any judicial review of that order would be an entirely empty exercise where an appeal was brought against that order and the order of the Circuit Court of 20 February 2020 replaced the District Court order. Accordingly, Hyland J refused to extend time to challenge the decision of the District Court. She noted that many of the applicant’s complaints were made against actions taken by the CFA rather than against the order of 20 February 2020. Hyland J was obliged to refuse leave to challenge actions of the CFA as the applicant had not sought to quash any such decisions. Hyland J noted that where the applicant did challenge aspects of the order of 20 February 2020, many of those complaints were challenges going to the merits of the decision of the Circuit Court; such challenges were outside the parameters of judicial review and complaints in that regard were best dealt with, as identified by McKechnie J in FG v CFA [2018] IESC 28, by issuing proceedings under s. 37 if there had been a change of circumstances or an efflux of time.

Hyland J refused the applicant’s application.

Application refused.

JUDGMENT of Ms. Justice Niamh Hyland delivered on 16 January 2023

Introduction

1 This case concerns the applicant's challenge to various Orders of the District and Circuit Courts between 2015 and 2020. Broadly, the Orders concern the applicant's access to her four grandchildren, where a Care Order was made in 2015 in relation to the four children, removing them from the care of their mother, who is the applicant's daughter. The applicant represented herself in these proceedings.

Facts and Background

2 The four children in question have been in the care of the respondent since 10 July 2015 on foot of Interim and Emergency Care Orders (“ECO's”) as well as a Care Order (the date of which was not provided in the course of these proceedings) made under sections 13, 17 and 18 of the Child Care Act 1991 (the “1991 Act”). The applicant was not in loco parentis in respect of the children and was not a respondent in the childcare proceedings.

3 Following the making of the above Orders, the applicant has continually sought access to her grandchildren. The position of the respondent during that period has been that it is open to facilitating access, but that it has concerns in respect of the applicant's ability and/or willingness to act protectively towards the children in circumstances where one of the children has made allegations of sexual abuse against a third party. In that context it submits that access can only be facilitated after a meaningful engagement on the part of the applicant with the respondent to address those concerns. The position of the applicant has been that the respondent has acted in a hostile manner, has failed to identify its concerns and has unlawfully failed to facilitate access to her grandchildren.

4 In bringing these proceedings, per her Statement of Grounds, the applicant seeks to challenge five separate decisions of the District Court and one decision of the Circuit Court. Chronologically, the reliefs sought are as follows;

• — A declaration that the Emergency Care Order of 10 July 2015 infringed her constitutional rights to her good name and fair procedures.

• — An Order of certiorari of the Order of District Judge Coughlan of 21 September 2017 prohibiting the applicant from contacting the guardian ad litem appointed to represent the views of her grandchildren.

• — An Order of certiorari of the Order of District Judge Coughlan of 25 January 2018 under s.47 of the 1991 Act prohibiting the applicant from contacting her grandchildren without the consent of the respondent and prohibiting contact with the guardian ad litem.

• — Two Orders of certiorari of the Orders of District Judge Jones of 15 November 2018 refusing applications for access made pursuant to s.37(2) of the 1991 Act. — An Order of certiorari of the Order of Circuit Judge O'Malley Costello of 20 February 2020 affirming the decision of the District Court of 15 November 2018.

5 The respondent makes three preliminary objections to these challenges. First, it is argued that the applicant was not a party to the proceedings the subject of the 10 July 2015 hearing, and she lacks standing to challenge their constitutionality and that the proceedings are privileged. Second, it is submitted that she is out of time in respect of the decisions of the District Court. Finally, in respect of all the challenges, it is argued that in the circumstances of the case and the statutory regime under the 1991 Act, I should exercise my discretion to refuse judicial review as a more appropriate alternate remedy is available. Clearly, if these preliminary objections are successful then the entirety of the applicant's case falls away. As such I will analyse these objections in turn before addressing any remaining points.

The proceedings

6 On 20 May 2020, following an ex parte application for leave, the Court deemed the application opened and the applicant was directed to seek leave for judicial review on notice.

7 A Notice of Motion for leave was issued on 27 May 2020 accompanied by an affidavit of the applicant sworn on the same date with the applicant's grounding affidavit having been sworn previously on 19 May 2020. Paul Johnson, a manager with the respondent then swore an affidavit on 19 June 2020. This was followed by a further affidavit of the applicant of 12 August 2020. Paul Johnson then replied to that affidavit with his own on 15 October 2020. The applicant then swore three further affidavits of 21 October 2020, 15 March 2021 and 15 November 2021. The Statement of Opposition was then filed, dated 20 June 2022 before a further replying affidavit of the applicant was filed on 4 July 2022.

8 The case was initially before me on 30 May 2022 but was adjourned until 10 November 2022 when I heard the parties in the context of a telescoped hearing, i.e. both the leave and the substantive application were heard simultaneously. Following the hearing, at my request, Paul Johnson filed a further affidavit on 21 November 2022 clarifying issues that had arisen during the course of the hearing. I also gave the applicant leave to submit written legal submissions in addition to her oral submissions on the day and these were received, alongside a further detailed replying affidavit on 1 December 2022. I note the respondent's position in the affidavit of Mr. Johnson of 21 November that its position is that it is not opposed to the applicant having access to the children, but this requires the applicant to engage with the respondent and take direction from social workers and access supervisors and that the applicant will consider the appropriateness of any...