LOG v Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 25 January 2017
• Neutral Citation: [2017] IEHC 58
• Docket Number: [2015 No. 419 J.R.]
• Court: High Court
• Date: 25 January 2017

[2017] IEHC 58

THE HIGH COURT

JUDICIAL REVIEW

Noonan J.

[2015 No. 419 J.R.]

BETWEEN

L.O'G.

AND

P.F.

APPLICANTS

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

Family – S. 13(1) of the Child Care Act, 1991 – Emergency child care orders – Natural and constitutional justice – Injury to infant – Welfare of child – Ongoing risk of parental abuse – Mootness

Facts: The applicants sought a declaration that an emergency care order made in relation to the applicants' child was made in breach of principles of natural and constitutional justice. The respondent/CFA claimed that since the child was found to have bruises all over the body, it became imperative to apply for emergency care orders and the interim care of the child was given to the child's maternal grandmother. The CFA further submitted that after the expiry of the emergency care order, the applicants had moved in with the child's maternal grandmother to take care of the child, the child was no longer under the care of the CFA and thus, the issue had become moot.

Mr. Justice Noonan dismissed the applicants' application. The Court held that after the expiry of the emergency care order, the issue had become moot and thus, there was no relevance to entertain the present application. The Court found that the circumstances of the present case did not require the Court to depart from the normal rule to grant relief in cases where the issue had become moot.

JUDGMENT of Mr. Justice Noonan delivered on the 25th day of January, 2017

1 In these proceedings, the applicants claim a declaration that an emergency care order made on 7th July, 2015, in respect of the applicants' child S.O'G. (‘the infant’) was made in breach of the principles of natural and constitutional justice. That is the sole relief claimed herein.

Relevant facts

2 The infant was born on 15th May, 2015. She resides with her parents, the applicants, who are unmarried. On 29th July, 2015, when the infant was six weeks old the public health nurse called unannounced to the family home to visit the infant and her mother. On that occasion, the public health nurse is alleged to have noted significant bruising on the infant's upper body and head. It is suggested by the respondent (‘the CFA’) that the cause for this bruising has never been satisfactorily explained.

3 Arising from the circumstances, the public health nurse called an ambulance which brought the child to University Hospital Limerick. The infant there came under the care of a consultant paediatrician who provided a written report dated the 3rd July, 2015, at the request of the CFA. In this he described bruising on the left deltoid, left lower arm, left side of the chest and left temple area. In addition to a clinical examination, the infant underwent a CT scan of the head which was normal. A renal ultrasound was also normal. The consultant concluded: ‘The nature of this injury is likely non-accidental. The cause of the injury has not been explained reasonably. There is no satisfactory explanation offered by the carers.’

4 Shortly after the infant's admission to hospital, the CFA were notified of these concerns and became involved in the matter. They interviewed the applicants. By Friday 3rd July, 2015, the infant was well and medically fit for discharge but it was agreed between the applicants and the CFA that the infant would remain in hospital pending the CFA's assessment of her welfare.

5 On Tuesday 7th July, 2015, an officer of the CFA informed the father that the agency intended applying to the District Court that afternoon for an emergency care order in respect of the infant. It would appear that this information was communicated to the father sometime around 11am that day. The applicants then sought the assistance of a solicitor and were given an appointment at 3pm that afternoon with their solicitor. Although there is some divergence in the accounts of the parties at this juncture, the CFA allege that they made repeated attempts to contact the father from about 2pm onwards when neither of the applicants arrived at court. In any event, it would appear that the matter proceeded before the District Court sometime shortly after 3pm.

6 The application before the District Court proceeded on foot of a document entitled ‘Ex Parte Notice of Application for an Emergency Care Order’ naming the CFA and the applicants as the relevant parties to an application under s. 13(1) of the Child Care Act, 1991. When the matter proceeded before the District Court, the District Judge enquired as to whether the parents were on notice and was informed of the foregoing facts. The matter proceeded with oral evidence being given on behalf of the CFA and at the conclusion of the hearing, the court made an order placing the infant under the care of the CFA for a period of eight days and that the infant be placed with her maternal grandmother.

7 At the conclusion of the hearing, the CFA witnesses and their solicitor left the court. Shortly thereafter, it would appear that the applicants arrived with their solicitor who mentioned the matter to the District Judge and made complaint of the fact that it had proceeded in his clients' absence. The District Judge declined to deal further with the matter in the absence of the other side and accordingly put it in for mention at 10am the following morning.

8 On Wednesday 8th July, 2015, both sides appeared with their solicitors and submissions were made to the judge by the applicants' solicitor inviting her to vacate the order made on the previous day. This was responded to by the CFA's solicitor and the judge declined to vacate her order but invited the applicants if they so wished to make a further application later the same day to discharge the order before her or another judge if necessary. It would appear that the infant was discharged from hospital that day into the care of her grandmother.

9 On Friday 10th July, 2015, the applicants made an application to this court for an enquiry pursuant to Article 40 of the Constitution into the lawfulness of the infant's detention by the CFA. The matter was heard by Kennedy J. who declined to direct an enquiry pursuant to Article 40 but instead gave the applicants leave to seek judicial review and apply for the declaration above referred to on the grounds set out in the order. The emergency care order expired on 14th July, 2015, and on that date; a further application was brought by the CFA on notice to the applicants for an interim care order in respect of the infant pursuant to s. 17(1) of the Child Care Act, 1991. Having heard the parties, on that date the District Court granted an interim care order for a further period of eight days.

10 Prior to the court hearing that day, the CFA held a child protection conference which adopted a child protection plan. This plan determined that the action to be taken in respect of the infant was:

‘S. O'G will be listed on the Child Protection Notification System held by Tusla Child and Family Agency due to ongoing risks of physical abuse as evidenced by unexplained injuries which occurred while she was in her parents' care.’

11 The matter came before the District Court again on 22nd July, 2015, on foot of a further application by the CFA for an extension of the care order. On that date, the applicants gave an undertaking to the court that they would move in with the infant's maternal grandmother and resume her care and on foot of that undertaking, in lieu of a care order the CFA applied for a supervision order for a period of six months, which the court granted.

12 Accordingly as of 22nd July, 2015, the infant was no longer under the care of the CFA.

13 Prior to the expiry of the supervision order, a further review child protection conference was held by the CFA on 7th January, 2016, at which it was decided that the infant...