M.M. v Relevant Circuit Court Judge
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] IEHC 450 |
| Docket Number | [2015 No. 497 JR] |
| Court | High Court |
| Date | 29 July 2016 |
IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED)
AND
[2016] IEHC 450
[2015 No. 497 JR]
THE HIGH COURT
JUDICIAL REVIEW
Family – Child Care Act 1991 – Welfare of children – Emergency care order – Judicial review.
Facts: The applicant sought an order quashing the order of the relevant District Judge claiming that the said order would be irrational, that the District Judge erred in law by failing to properly consider relevant material and/or gave undue weight to irrelevant material. The applicant sought declaration that the access order made by the District Court would not be ‘reasonable’ within the meaning of s. 37 of the Act of 1991.
Ms. Justice Baker held that the application for an order quashing the order of the relevant District Judge would be refused. The Court observed that the Court would deliver a separate judgment to deal with the application for judicial review, which sought relief with regard to the appropriate role the guardian ad litem might take in an application under the Act of 1991. The Court further stated that the Court would make an order extending the time for the bringing of that part of the application.
This is a telescoped hearing in an application for judicial review brought by the applicant in her own capacity and as mother and next friend of the second named applicant, a six year old boy, who has been in the care of the State under s. 18 of the Child Care Act 1991 (‘the Act of 1991’) since an emergency care order was made on 15th July, 2011 and in respect to whom a full care order was affirmed on appeal by the Circuit Court on 23rd October, 2013.
The applicant seeks reliefs in these proceedings arising out of the order made in the District Court on 25th May, 2015 by which the access which she enjoys to two of her children was regulated. It is in respect of the access and ancillary arrangements made by the District Judge in respect of the younger child that this application is brought.
This is the second of three applications heard by me for judicial review relating to orders made under the Act of 1991 in regard to the children. In the course of the hearings an application was made by senior counsel, in reliance on the inherent jurisdiction of the High Court, for an interlocutory order directing access between mother and child pending the conclusion of the applications for judicial review or further order by the relevant court. I delivered an ex tempore judgment in that application on 4th December, 2015 in which I refused the application, as I considered that I had no evidence on which I could make the order sought, and because the determination of access arrangements in respect of this child remained before the District Court and an application was to be heard by Judge Constantine O'Leary in Cork within two weeks of the hearing before me.
The application for judicial review makes 20 substantive claims, and was grounded on an affidavit which ran to 83 substantive paragraphs and contained voluminous exhibits. The very extensive legal submissions furnished by counsel for the applicants presented to a large degree as a ‘scattergun’ approach and contained extensive quotes from decided cases, mostly of the Irish courts but also of the European Court of Human Rights, but not linked to the factual nexus or the reliefs sought.
I directed counsel to summarise and consolidate his grounds and gave a considerable amount of leeway to him to put his paperwork and arguments in order. The closing legal submissions were heard by me on 16th March, 2016.
I have attempted to categorise the reliefs and grounds as best I can, and have not used the number sequence found in the pleadings
The primary relief sought is an order quashing the order of the relevant District Judge made on 25th May, 2015 on the grounds that:
(a) The decision of the District Court was irrational in the sense identified by the Supreme Court in O'Keeffe v. An Bord Pleanála & Ors. [1993] 1 I.R. 39 and Meadows v. Minister for Justice Equality and Law Reform [2010] IESC 3, [2010] 2 I.R. 701.
(b) The District Judge erred by failing to properly consider relevant material and/or gave undue weight to irrelevant material.
(c) The District Judge approached the matter of access without having due regard to a right of the mother and child to enjoy the company of the other, and to be reunified with one another, such that the District Judge failed to have regard to the desirability of maintaining a bond between parent and child.
(d) The District Judge erred in law in relying on findings already made by him and by the Circuit Court on appeal in earlier proceedings concerning the care of the young boy, and in particular that matters of fact found by the District Court, and on appeal by the Circuit Court, which resulted in an order taking the minor child into the care of the CFA under the Act of 1991 ought not to have influenced the decision of the District Court in regard to the regulation of access.
Declaratory relief is sought with regard to the form of the access order made by the District Judge by which he confined access to a particular location, and it is argued that those access provisions are unreasonable and failed to afford sufficient support to the family unit.
A more broad declaration is also sought, that the CFA has a positive obligation to take steps to foster the reunification of families where relationships have become fractured. It is not pleaded that the CFA owes a duty to reunify mother and child in the present case, but a declaration is sought that it ought to indicate to the mother what supports or assistance it proposes to put in place to facilitate reunification.
A declaration is sought that the access order made by the District Court on 25th May, 2015 was not ‘reasonable’ within the meaning of s. 37 of the Act of 1991, when construed in the light of the constitutional rights of mother and child and rights under the European Convention on Human Rights and/or the Convention on the Rights of the Child.
An order of certiorari is sought quashing a finding made by the District Judge on 25th May, 2015, that the 5 year old boy was ‘presented asleep’ for, or slept throughout, access and that this was not as a result of ‘anyone deliberately causing him to sleep’. I do not propose to make relief in terms of that paragraph, it seems to me to quintessentially relate to the merits and to the factual findings of the District Judge that are not within my remit in this judicial review.
Finally, application is made concerning the appointment of a guardian ad litem in respect of the child and declaratory relief is sought in regard to the role the guardian ad litem has already taken or is entitled to take in future applications in the court process. Application is made for the following declarations:
(a) A declaration that there is no lawful authority for the jointure of a guardian ad litem as a party to proceedings under the Act of 1991.
(b) A declaration that as a guardian ad litem is merely a potential witness, that there is no lawful basis for permitting him/her to either examine or cross-examine witnesses which make legal submissions to the court, and that the sole permitted role is to convey to the court what she or he believes to be the views of the child, or matters that are in that child's best interest.
By application made on 14th April, 2014 pursuant to s. 47 of the Act of 1991, (as amended) the CFA sought that the court would determine whether the suspension of access between the mother and her young son was in the best interest of the child.
The application came before the court on various dates. On 30th April, 2014, an interim order was made regulating special drop off and supervision arrangements. Evidence was heard over 15 days, and the District Judge delivered his decision on 25th May, 2015 by which the applicant was permitted to have access with her son once every two weeks and access was directed to be conducted in the manner provided by an earlier order with some variation.
The order which governs the access arrangements between mother and child, put in place a strictly choreographed access arrangement, by which inter alia there was to be no camera used for 45 minutes of the one hour access period, that the mother was to be present in the room ten minutes before access was due to start and that the first and last fifteen minutes of access be recorded. The mother was directed thereby not to bring any blanket, musical or other toy to the visit and was not to engage with or indulge in personal abuse or other remarks with the staff of the facility in which access was to take place.
The order was made on the reasons and reasoning set out in a 48 page written judgement of the District Judge which recites that evidence was heard from witnesses for the CFA, witnesses for the mother, and the mother herself, as well as her solicitor and the guardian ad litem. Oral and written legal submissions were furnished to the court.
Dr. Caroline Goldsmith, a consultant neuro psychologist had been directed by the court to assess the quality of access between mother and child and to consider whether access should be altered or discontinued temporarily or permanently, and in her report described as a psycho-legal report dated 30th August, 2014, she dealt with broad issues such as bonding between mother and child, and the need to provide a safe place to...
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MM v The Relevant Circuit Court Judge
...to ‘act as a party’ in the care proceedings. The grounds on which relief was sought are identified at paragraphs 7 – 12 of my judgment [2016] IEHC 450. 6 That application for judicial review was refused partly because the applicants were well out of time to seek an order of certiorari quas......