M.M. v Child & Family Agency

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 451
• Docket Number: [2015 No. 526 JR]
• Court: High Court
• Date: 29 July 2016

[2016] IEHC 451

THE HIGH COURT

Baker J.

[2015 No. 526 JR]

BETWEEN

MM

AND

MAM (A MINOR SUING BY HIS PARENT/NEXT FRIEND MM)

APPLICANTS

AND

THE CHILD AND FAMILY AGENCY

AND

THE RELEVANT DISTRICT COURT JUDGE

RESPONDENTS

AND

MIRIAM LYNE

NOTICE PARTY

Family – The Childcare Act 1991 – Welfare of the children – Child and Family Agency (CFA) – Judicial review – Jurisdiction of the High Court

Facts: The first named applicant (mother) had filed the third application for judicial review relating to the care of, access to and custody of the second named applicant (son), seeking numerous declaratory reliefs based on the principles of constitutional rights, legal protection, and interests of the minor child and the mother. The second named applicant was subject to various Court orders made by the second named respondent, which gave directions in the matter of the welfare of the child, and the Circuit Court on appeal had confirmed the primary orders by which the second named applicant was taken into care. The applicant sought for injunctive relief on the ground that the second named respondent had failed to ensure that its orders were obeyed, which interfered with the rights of the applicant.

Ms. Justice Baker refused to make an order for judicial review. The Court held that the High Court on an application for judicial review did not deal with the merits of the case The Court held that it could not make an order in review to clarify the law and save the procedures and process adopted by the second named respondent as it was not clear on what ground leave was granted to the first named applicant by the High Court in the second judicial review application. The Court held that it could not make any order relating to the management and access of a young child as it did not hear evidence to determine the method to protect the interests of the child. The Court held that the second named respondent had jurisdiction to determine the matters relating to the interest of the child under the Act of 1991 and an appeal lied to the Circuit Court. The Court held that there was no evidence produced before it to show that the Child and Family Agency (CFA) (first named respondent) had failed without reason, without explanation or due process to tender the child for access. The Court held that it was outside the jurisdiction of the Court in judicial review to make any order directed to the first named respondent with regard to the management of access as it had no evidence.

Ms. Justice Baker

1 This is third of three applications for judicial review brought by the applicants relating to the care of, access to, and custody of the second named applicant, a young boy born on 8th April, 2010. The first named applicant is the mother of the young boy who is the subject of a care order made under s. 18 of the Childcare Act 1991 (‘the Act of 1991’) on 15th July, 2011.

2 The judicial review seeks relief in ten matters relating to the ongoing management of the access of the mother to her son pursuant to various orders made by the District Court exercising its jurisdiction under s. 47 of the Act of 1991 to give directions as to matters affecting the welfare of the child.

3 The application for judicial review is very broadly framed, and seeks declaratory relief in respect of a number of broadly stated, and in many cases scarcely controversial, principles of law arising from the constitutional and legal protection and primacy of the interests of a minor child, and of the rights of the mother of that child.

4 Certain reliefs sought are not controversial, or may be said to be unnecessary, in particular the following orders:

(a) That ‘a state body’ is charged with ensuring that constitutional rights and the rule of law are not undermined or disregarded.

(c) Any orders limiting the right of access of the mother to her child should be ‘proportionate and justified’, and sufficient reason must exist before access is limited or restricted in total.

(d) That ‘insurmountable obstacles’ ought not to be placed between mother and child with regard to their right to associate and communicate with one another.

(f) That a parent must be provided with an opportunity to see and speak to his or her child and the child to the parent.

(g) That Articles 40.3 and 42 of the Constitution, Article 8 of the European Convention on Human Rights, and Article 9(3) of the International Convention on the Rights of the Child mean that children have a right to be raised by their parents and remain in their custody, and that such rights should be interfered with to the least degree necessary to protect the children, and any measures taken must be supported.

(h) That reunification of parent and child is desirable where a child and parent are separated for whatever reason, including by court order.

(i) That the State has a positive duty to find practical solutions to difficulties experienced...