LON v District Court Judge Daly

• Jurisdiction: Ireland
• Judge: Mr. Justice Twomey
• Judgment Date: 30 May 2016
• Neutral Citation: [2016] IEHC 285
• Court: High Court
• Docket Number: [2015 No. 367]
• Date: 30 May 2016

BETWEEN:

LON

APPLICANT

-AND-

DISTRICT COURT JUDGE COLIN DALY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

-AND-

CHILD AND FAMILY AGENCY

NOTICE PARTY

-AND-

GG

NOTICE PARTY

[2016] IEHC 285

[2015 No. 367]

THE HIGH COURT

JUDICIAL REVIEW

Constitution – Family – S. 18 of the Child Care Act, 1991 – Length of care orders for children – Proportionality – Right of access of children – Judicial review – Availability of an alternative remedy

Facts: Following the grant of care orders by the first named respondent in relation to the four children of the applicant/mother and the second notice party/father until they attain 18 years of age, the applicant now sought an order for quashing the decision of the first named respondent. The applicant objected that grant of care orders for such a long period of time was disproportionate and contrary to the natural and inalienable rights of children guaranteed under the Constitution. The issue that arose for determination was whether the decision of the first named respondent was amenable to judicial review without first availing the remedies available at hand. The applicant asserted that since the issue involved clarification on law of proportionality as applicable to child care, a judicial review and not a statutory appeal to the Circuit Court was the best available remedy.

Mr. Justice Twomey refused to grant the desired relief to the applicant. The Court held that a litigant should not try to file an application for judicial review at the first instance without exhausting all other options available to him. The Court observed that the presence of an appeal procedure would not itself operate as a bar to initiate judicial review. The Court held that where it appeared that the alternative remedies would not be able to do justice to the parties, it was appropriate to seek relief by way of judicial review. The Court found that it was open to the applicant to either apply for variation of the child care orders under s. 22 of the Child Care Act, 1991, before the first named respondent or file an appeal to the Circuit appeal under s. 28 (1) of the Act of 1991 to redress her grievance in relation to the duration of care orders. The Court further held that the first named respondent had even provided for a mechanism for review of its orders in the impugned judgment having regard to the change in circumstances of the applicant so that the children could have access to their mother, which, in the opinion of the Court, was the most appropriate remedy for the applicant.

JUDGMENT of Mr. Justice Twomey delivered on 30th day of May, 2016.

Introduction

1 This case involves a challenge to the validity of Care Orders granted by the District Court in respect of the applicant's four children. The applicant alleges that, while she consented to Care Orders of three years, the Care Orders which were granted ranged from 12 to 16.5 years and were disproportionate.

2 A key issue in this case is whether the availability to the applicant of an appeal of the District Court's decision to the Circuit Court, as well as the alternative remedy of her seeking a review of the Care Orders during their term by the District Court, is sufficient to deprive the applicant of her right to judicially review in the High Court the decision of the District Court.

Background

3 The applicant is a young woman who has drug problems and is involved in a relationship which has a history of domestic violence. She is the mother of four children, the first child was born when she was 17 and the last of the four when she was 22. The children are currently 7, 6, 4 and 2 years of age, respectively. The father of the four children is a notice party to the proceedings but is taking no active part in the proceedings. The Care Orders in this case were delivered by Judge Daly on the 16th February, 2015, although the judgments are dated 16th January, 2015. Under these Care Orders, all of the four children are with separate carers. Three of the children were placed with a paternal aunt, the applicant's cousin and a paternal grandmother, respectively, and one was placed with non-relative foster carers.

4 Under s. 18 of the Child Care Act, 1991 (the ‘1991 Act’), before a child is subject to a Care Order, the court must be satisfied that:-

‘(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or

(b) the child's health, development or welfare has been or is being avoidably impaired or neglected, or

(c) the child's health, development or welfare is likely to be avoidably impaired or neglected,

and that child requires care or protection which he is unlikely to receive unless the court makes an order…’

5 The Care Order hearing before the District Court lasted seven days and 15 witnesses gave evidence to Judge Daly, including social workers, child psychologists, a drug treatment GP and a Paediatric Neuropyschologist. In addition, evidence was taken from both parents and the guardian ad litem.

6 The applicant and the father both conceded to Judge Daly at the hearing in the District Court that the criteria set out in s. 18 (b) and (c) of the 1991 Act had been met and they both sought Care Orders of three years duration in respect of each child.

7 The Child and Family Agency in a detailed 120 page Report to the District Court requested the Court make a Care Order in respect of the children until they are 18 years of age.

8 The guardian ad litem, an experienced social worker, appointed to represent the interests of the four children, provided a detailed 40 page Report to the District Court and recommended that a Care Order be made until each of the four children reached 18 years of age.

9 Having heard all the evidence, the District Court granted a Care Order for each of the children until they reached 18 years of age. Judge Daly gave his reasons for making the orders:-

‘11. My reasons for making orders for these durations are as follows:

(i) The children's exposure to and experience of domestic violence between the parents;

(ii) The parents lack of adequate or proper supervision of the children while in their care;

(iii) The parents ongoing and pervasive drug addictions and failure to adequately address their addiction difficulties;

(iv) The children's exposure to the parents' drug addictions;

(v) The parents failure to deal with their own personal issues underpinning their drug related problems;

(vi) The parents current lack of capacity to parent and in particular the mother's assessed ongoing lack of capacity to parent without full-time support which the father is not at this time able to provide;

(vii) The parents relatively little progress in addressing their own difficulties since the children's reception into care.

12. I am satisfied this decision is proportionate for the care of the children having considered that the question of proportionality may be summarised as the making of an order that goes no further than is strictly necessary to assure the welfare of the children. Here I have considered the proportionate duration of the care order in light of the harm suffered by each of the children, the risk to them and that fact that the parents have made relatively little progress to address their own difficulties in the time the children have been in care.’

Judge Daly directed that the case would be listed for a full review of the children's progress in care on the 29th January, 2016, with a review at that stage of the parents' progress in dealing with their difficulties. He also provided for a second review since he recommended that if the parents demonstrated sufficient progress on that date the matter could be listed for a full review of the children's care arrangements two years after that review date.

This Court was advised that the review due to be held on 29th January, 2016, was adjourned until 9th May, 2016, by the Child and Family Agency. As no issue was made regarding this adjournment on behalf of the applicant, it appears that this adjournment was made without objection from the applicant.

This Judicial Review

10 On 29th June, 2015, Noonan J. granted leave to bring these judicial review proceedings. On 16th March, 2016, McDermott J. ordered that the applicant's four children be joined to the proceedings as notice parties and that the guardian ad litem in the District Court proceedings be appointed guardian ad litem of these notice parties for the purposes of this judicial review.

11 In this judicial review, the applicant is not taking issue with the foregoing reasons given by Judge Daly for his decision. Counsel for the applicant, at the hearing of this case accepted that these reasons were based on the concessions made by the applicant and her partner at the hearing before Judge Daly. Nor is the applicant taking issue with the fact that these reasons justified a Care Order. At the hearing in the District Court the applicant accepted that the threshold requirement for a Care Order as set out in s. 18 of the 1991 Act had been satisfied, namely that the children's health, development or welfare has been or is likely to be avoidably impaired or neglected, and that the children require care or protection which they are unlikely to receive unless a Care Order is made.

12 However, the applicant's case is that, while a Care Order was justified (indeed the applicant sought one of three years duration), the reasons given by Judge Daly are inadequate and are perfunctory in the context of the granting of a Care Order until each of the children were 18 years of age, which the applicant says is disproportionate.

13 Since Judge Daly made Care Orders until each of the children were 18 years of age, taking account of the ages of the children at the time of the Care Orders, this meant that the four Care Orders were for 12...