McG (S) & C (J) v Child & Family Agency

CourtHigh Court
JudgeMs. Justice Baker
Judgment Date17 November 2015
Neutral Citation[2015] IEHC 733
Date17 November 2015

[2015] IEHC 733


[No. 1796 SS/2015]
McG (S) & C (J) v Child & Family Agency





Constitution – Art. 40.4.2 of the Constitution – The Childcare Acts 1991-2013 – Unlawful detention – Habeas corpus – Child welfare

Facts: The applicant had challenged the order of the District Court pursuant to art. 40.4.2 of the Constitution directing the detention of her children into the care of the Child and Family agency for a period of 29 days. The father of the children being the co-applicant also sought the similar order; however, he could not assert the constitutional right as the parties were not married. The respondent contended that the appropriate remedy for the applicants was to seek judicial review of the order of the District Court.

Ms. Justice Baker granted an order for the release of the children. The Court held that the remedies of judicial review and the conduct of an inquiry under art. 40.4.2 of the Constitution might not always be mutually exclusive and the procedure set out in the Rules of the Superior Courts for bringing an application for judicial review was not as quick and efficient as an inquiry under art. 40.4.2 of the Constitution. The Court found that it would not be appropriate to direct the custody of the children without giving fair and reasonable opportunity to the mother of the children to represent her case. The Court held that the District Court erred in directing the detention of the children without paying attention to the request for adjournment by the applicant as there was an inherent continuity in the childcare process and a flaw at an early stage could prove detrimental to the proceedings at the later stage.


1. This is an inquiry into the lawfulness of the detention of the two children named in the title hereto, a boy aged fourteen and a girl aged five. By District Court order made pursuant to s. 17(1) of the Childcare Act 1991 (the "Act") (as amended) on the 29 th October, 2015, the children were taken into the care of the Child and Family Agency for a period of 29 days. The children have been placed with foster parents and continue to have contact with their parents.


2. The first applicant is the mother of the children with whom they were living at the time of the order, and the second applicant is their father. The application was brought by the applicant, and the father of the children was named as notice party. In the course of the hearing before me counsel on his behalf sought to be joined as co-applicant and I made that order in recognition of the fact that he had sought to engage with the District Court hearing by which the children were taken into care, and because he has had ongoing frequent contact with the children since he and their mother ceased living together.


3. The parents of the children are not married to each other, and this has the consequence that it is the mother alone who may assert constitutional rights to the care and custody of her children. The father's rights stand as a matter of common law and statute.


4. Both parents were separately represented by solicitor and junior and senior counsel, as was the Child and Family Agency ("the Agency").


5. A preliminary objection has been raised by the Agency with regard to the appropriateness of the Article 40.4.2 procedure in childcare matters, or more specifically in the circumstances giving rise to this application. A second preliminary objection is that the applicants wrongly seek to rely on asserted breaches of their constitutional rights to fair procedure, and that as a matter of first principle an application for an inquiry under Article 40.4.2 must be grounded on the alleged breaches of the rights of the person alleged to be in unlawful detention. It is argued that the parents of the children may not seek this inquiry on foot of an alleged breach of their rights, and that should such an approach be permitted the court could find itself faced with a conflict between those interests of the parents, and the best interests or welfare of the children.


6. An application for interim care orders in respect of the two children was listed before the Dublin Metropolitan District Court on Thursday 29 th October, 2015. This was the first time an application had been made to take them into the care of the Agency. The mother obtained legal aid for the purposes of the application only on the morning of the hearing, the 29 th October, 2015, and because she did not have the benefit of a legal aid certificate in the days before the appointed date for hearing it was not possible for her solicitor, Mr. Cahill, to meet her in advance of the hearing or to obtain copies of the relevant paper work from her or on her behalf.


7. At approximately 10 am on the morning of the hearing the solicitor acting for the Agency furnished detailed social work reports in respect of the children to the solicitor acting for the mother, and approximately three quarters of an hour later he furnished the other reports on which the Agency intended to rely, being medical reports in respect of the children. In all 20 pages of expert reports were furnished, and it is fair to observe that the social work reports in particular contained a significant amount of detail with regard to the care of the children and to the engagement by the relevant social workers with the children since the first referral to the Department of Social Welfare in June, 2013. The report recommended a particular course of action on very detailed grounds and by reference to specific dates and events on which matters of concern were said to have come to the attention of the social workers.


8. The case was called in the list sometime around 10.30 am and Mr. Cahill met his client immediately after the call-over with a view to discussing the contents of the social work reports, taking her instructions in relation to the factual matters therein detailed, and in general with regard to the application. The evidence is that Mr. Cahill had approximately fifteen minutes in which to conduct this discussion and take instructions from his client.


9. Mr. Cahill prudently sought to discuss the matter with the solicitor acting for the Agency and he, having taken instructions from his client, acceded to a request to consent to the matter being adjourned for a period of a week.


10. At 11.30 am the matter was called again before the District Judge and an application for an adjournment was made on consent, the District Judge being told that the parties had had discussions with regard to the duration of the adjournment and that they had agreed that an adjournment for one week would be appropriate.


11. However, the District Judge refused to grant the adjournment and directed that the matter should proceed. Mr. Cahill attempted to explain the difficulties giving rise to his application for an adjournment, and also indicated to the Judge that his brief conversation with Mr. C the father of the children led him to the view that he too required representation, and that his degree of literacy was such that it did not seem likely he could properly represent himself.


12. Mr. C the father of the children supported the application for the adjournment and informed the District Judge that he had made application for legal aid some days previously, and had been assured that his application was being treated as one of priority. He explained that he suffered from a degree of illiteracy and from significant physical ailments, and was unable to deal with the application without legal assistance.


13. The District Judge did permit Mr. Cahill to take further instructions from his client after the matter was called at 11.30 but the evidence is that no more than five minutes were given for that purpose, and that Mr Cahill says he was unable to fully read through the reports with the mother and take instructions in relation to the detailed matters contained therein in that time.


14. The matter then proceeded to a hearing over four hours after which the District Judge made an order taking the children into the care of the Agency for the statutory period of 29 days.


15. Noonan J. by order of the 6 th November, 2015 ordered the respondent in accordance with Article 40.4.2 of the Constitution to certify in writing the grounds of the detention and the certificate of Ms. Soye, social worker, dated the 10 th November, 2015 identifies the basis of detention as the interim care order under s. 17(1) described above.


16. The respondent makes a number of principled objections to the application and asserts in particular that the procedure provided under Article 40.4.2 is not appropriate to deal with the complex and factually diverse circumstances that arise in childcare proceedings. It is not asserted that an inquiry may never be warranted in a challenge to an order taking a child into care, but rather that the correct approach is that in general judicial review is a more suitable procedural means by which a decision of a district judge under the Act may be challenged. It is argued more specifically that the complaints giving rise to these proceedings are of a type most commonly found in applications for judicial review.


17. It is argued in particular that there a number of features of the procedure provided by Article 40.4.2 which make it particularly unsuitable for the challenge at hand, as the result of a determination of a judge following an inquiry is either to order or refuse a release, and that even when an order has been...

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