M.F. v Supt. Ballymun Garda Station

• Jurisdiction: Ireland
• Judge: [GRIFFIN, HEDERMAN, McCARTHY CONC],FINLAY C.J.
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-SC 602
• Docket Number: [1989 No. 692 SS]
• Court: Supreme Court
• Date: 01 January 1991

1990 WJSC-SC 602

THE SUPREME COURT

Finlay C.J.

Griffin J.

Hederman J.

McCarthy J.

O'Flaherty J.

76/90

FINNEY v. BALLYMUN GARDA STATION

MARIA FINNEY

Applicant/

Respondent

and

THE SUPERINTENDENT OF BALLYMUN GARDA STATION

Respondent

and

JOHN RYNNE AND EASTERN HEALTH BOARD

Notice Party/

Appellants

and

DISTRICT JUSTICE JAMES PAUL McDONNELL

Notice Party

Citations:

CHILDRENS ACT 1908 S24

CHILDRENS ACT 1908 S20

CONSTITUTION ART 40

D, STATE V G & ORS UNREP SUPREME 02.11.89

CHILDRENS ACT 1908 S24(3)

QUINN, STATE V RYAN 1965 IR 70

SHEERIN, STATE V KENNEDY 1966 IR 379

MCMAHON V AG 1972 IR 69

de BURCA V AG 1976 IR 38

O'FLAHERTY, STATE V O FLOINN 1954 IR 295

CONSTITUTION ART 42.5

CONSTITUTION ART 40.3

ADOPTION (NO 2) BILL 1987, In re 1989 ILRM 266

GUARDIANSHIP OF INFANTS ACT 1964 S3

G V BORD UCHTALA 1980 IR 32

CHILDRENS ACT 1908 PART 11

CHILDRENS ACT 1908 SCHED 1

OFFENCES AGAINST THE PERSON ACT 1861 S5

OFFENCES AGAINST THE PERSON ACT 1861 S27

OFFENCES AGAINST THE PERSON ACT 1861 S55

OFFENCES AGAINST THE PERSON ACT 1861 S56

CRIMINAL LAW (AMDT) ACT 1885

CHILDRENS ACT 1908 S20(1)

DANGEROUS PERFORMANCE ACT 1879

DANGEROUS PERFORMANCE ACT 1897

CHILDRENS ACT 1908 S131

SUMMARY JURISDICTION RULES 1909 RULE 6

CHILDRENS ACT 1908 S20(3)

CHILDRENS ACT 1908 S21

CHILDRENS ACT 1908 S21(3)

CHILDRENS ACT 1908 S21(4)

CHILDRENS ACT 1908 S24(1)

SUMMARY JURISDICTION RULES 1909 RULE 12

CHILDRENS ACT 1908 S31

CHILDRENS ACT 1908 S129

Synopsis:

DISTRICT COURT

Summons

Return date - Child - Protection - Safety order - Appointment of fit person - Natural justice - Fair procedures - Date to provide shortest period consistent with opportunity for parties to prepare for hearing - (76/90 - Supreme Court - 3/5/90) 1991 1 IR 189

|The State (F.) v. B.|

INFANTS

Protection

Courts - Intervention - Parent - Information - Denial - Safety order - Natural justice - Fair procedures to be applied - Moot point not normally decided by appellate court - Summary Jurisdiction Rules, 1909, rr. 9, 12 - Children Act, 1908, ss. 20, 24, 31 - Guardianship of Infants Act, 1964, s. 3 - Constitution of Ireland, 1937, Articles 40, 50 - (76/90 - Supreme Court - 3/5/90) - [1991] 1 I.R. 189 - [1990] ILRM 767

|The State (F.) v. B.|

NATURAL JUSTICE

Fair procedures

Parent - Child - Custody - Removal - Protection of child - Court's intervention - Safety order - Parent not to be kept in ignorance of facts - (76/90 - Supreme Court - 3/5/90) 1991 1 IR 189

|The State (F.) v. B.|

PRACTICE

Time limit

Summons - District Court - Return date - Child - Protection - Safety order - Appointment of fit person - Natural justice - Fair procedures - Date to provide shortest period consistent with opportunity for parties to prepare for hearing - (76/90 - Supreme Court - 3/5/90) - [1991] 1 I.R. 189 - [1990] ILRM 767

|The State (F.) v. B.|

1 JUDGMENT delivered on the 3rd day of May 1990by FINLAY C.J.

2 I have had the opportunity of reading the judgment which is about to be delivered by O'Flaherty J. and I am in agreement with it, both as to the reasons given and as to the conclusions reached.

3 I would like, however, to emphasise what is stated in that judgment, namely, that the interpretation which the Court should properly place upon these Sections ofthe Children's Act 1908 is one reached on foot of principles particularly deriving from the clear constitutional protection of the interest of children in any legal proceedings and, in a sense, also from the continued absence in our jurisprudence of separate representation for children.

4 I would also like to express the view that whilst the Court has found these Sections of the Act capable of being put into effect in the manner clearly set out in the judgment that the necessity for a modern Children's Act making a more efficient and simpler procedure for the protection of children available to the Courts remains one ofurgency.

5 JUDGMENT DELIVERED ON THE3rd DAY OF May1990 BY O'FLAHERTY J. [GRIFFIN, HEDERMAN, McCARTHY CONC]

6 The applicant/respondent is the mother of five children now aged from eight years down to one year. As found by the learned trial judge (Mr. Justice Barron) in November 1987 she separated from her husband who is the father of the four eldest children and since then the family unit has come under the notice of the social workersemployed by the Eastern Health Board who have provided it with support. On 13 October, 1989 Mr John Rynne a social worker employed with the Eastern Health Board and, himself, a respondent/appellant in this appeal expressed to the solicitor for the Eastern Health board concern over the welfare of the children. So much so that the solicitor was determined immediately to make an application under section 24 of the Children's Act, 1908. But it was late in the evening when the solicitor got that information and the District Court was not sitting at that hour. The solicitor thought that it might be possible to make an application on the following morning which was a Saturday because there are often sittings on a Saturday to deal with custody matters in the Bridewell. Although it was a matter of some dispute as to whether the District Court was sitting on that particular Saturday or not, for whatever reason, an application was not made on the Saturday but over the weekend the solicitor drafted an information in respect of each of the children on the basis of what Mr. Rynne had told her so that an application could be made to theDistrict Court on the following Monday.

7 However, in the meantime Mr. Rynne was sufficiently concerned about the welfare of the children to invoke section 20 of the Children's Act, 1908 and had arranged for the children to be taken into care by a member of the gardai. It can be said, in relation to this, that if the evidence which Mr. Rynne had was correct he was not only entitled but was obliged to act as he did. Unfortunately, the information that had been prepared in advance of the hearing for the District Court did not contain an averment setting out that section 20 had already been invoked but this was an inadvertent omission due to the speed with which the matter had to be processed.

8 It is not necessary to refer to the respective informations that were furnished except to say that each contains sufficient detail to justify the learned District Justice in making the orders that he did make under section 24 of the Children's Act, 1908.

9 Thereafter "fit person" summonses were issued in respect of each of the children returnable to a sitting ofthe District Court on 22 November, 1989.

10 In the meantime, as found by the learned High Court judge, the mother attended six times between 16 October and 26 October at the offices of Mr. Rynne in order to see him but without success. At no time during that period did anyone contact her either on behalf of the Eastern Health Board or the gardai nor did she ascertain where her children were. She did eventually engage a solicitor, Mr. Pol O Murchu, and he ascertained that on 16 October 1989 "place of safety orders" had been made by the District Court on information sworn by Mr. Rynne on that date. He has recounted that on 27 October an application was made to the District Justice to stay the orders pending appeal but this was refused. On the same date the mother received by registered post summonses seeking "fit persons" orders which had been issued on 20 October, 1989 and were returnable for 22 November, 1989. On 27 October, 1989 the mother had two telephone conversations with Mr. Rynne in the course of which she was informed that the children were with foster parents in the Ballymun area.

11 It is only fair to say that at the hearing of the appeal further affidavit evidence by Mr. Rynne was received in which he deposes to the efforts that he made to contact the mother and it can be concluded that while undoubtedly it was unfortunate that lines of communication were not established sooner this was not due to any dereliction on the part of the social workers.

12 On 31 October, 1989, an application was made to the learned High Court judge pursuant to Article 40 of the Constitution as to the legality of the children's detention. That inquiry was heard on 3 November,1989.

13 The judge, in the course of his judgment, said that he would not deal with the reasons for taking the children from their mother mainly because he had no wish to say anything which might prejudice the hearing of the relevant issues. He did, however, go on to say:-

"It is sufficient I think for me to indicate that there was no pressing danger justifying breaches of the law applicable or requiring other than the adoption of fair procedures."

14 The judge was critical of the failure to establish access for the mother and thought that the treatment she received was totally unfair, was a total denial of her rights and those of her children as humanbeings.

15 This was surely an overstatement of the situation. That there was a breakdown in communications, there can be no doubt. However, this was not due to any deliberate or conscious action on the part of any social worker employed by the Eastern Health Board and it must be said that they were doing their best in the circumstances. It is to be hoped that the result of this case may be to paint a clearer picture on how the procedures envisaged by the Children's Act, 1908, should be operated and this should bring about the result that there will not be a repetition of the type of misunderstanding that prevailed in this case.

16 It is necessary, however, to emphasise what the Chief Justice said in his judgment in The State (D) v. G. and Others (2 November, 1989; unreported)

17 ".... there could be exceptional circumstances under which it would be detrimental to thewelfare of a child for the identity of the "fit person" and the location of the home to be made known to a person in whose custody that child had previously been. In such exceptional...