Ms A v Child & Family Agency

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 04 November 2015
• Neutral Citation: [2015] IEHC 679
• Docket Number: RECORD NO: 2015/376JR
• Court: High Court
• Date: 04 November 2015

[2015] IEHC 679

THE HIGH COURT

Barrett J.

RECORD NO: 2015/376JR

BETWEEN:

MS A AND CHILD X AND CHILD Y (SUING THROUGH THEIR MOTHER AND NEXT FRIEND MS A)

APPLICANT

– AND –

THE CHILD AND FAMILY AGENCY

RESPONDENT

Family – Restoration of family unit – Order of certiorari – Order of mandamus – Breach of fair procedures – Breach of audi alteram partem – Whether Child Protection Conferences of 27th April and 27th May, 2015 are subject to judicial review.

Facts: The applicant sought an order of certiorari for judicial review of the Child Protection Conferences of 27th April and 27th May 2015. The applicant contended that the Child and Family Agency (CFA) had acted in violation of the applicants' constitutional rights in not allowing Ms. A to bring legal representation to the Child Protection Conferences. The applicant further sought an interlocutory injunction restraining the CFA from taking any further action.

Mr. Justice Max Barrett held that the application seeking an order of certiorari and mandamus would be denied. The Court observed that the Child Protection Conferences of 27th April and 27th May 2015 are not subject to judicial review. The Court further stated that the request for granting injunctive relief preventing the CFA from carrying out its statutory duties or obligations would be denied. The Court observed that the request for an order of mandamus compelling the CFA (i) to effect the immediate restoration of the family unit and (ii) to withdraw the threat of orders under the Child Care Act 1991 would be denied for lack of legitimate purpose.

Judgment of Mr Justice Max Barrett delivered on 4thNovember, 2015.

PART 1: SOME BACKGROUND FACTS

1 Ms A is in a long-term relationship with Mr B. They have two children, Child X and Child Y, presently aged 13 and 11 respectively. Ms A also has an adult child by a previous relationship. That child no longer resides with Ms A. Certain serious allegations have been made about Mr B as regards his behaviour towards Ms A and their two children. It is important to emphasise that at this time these are allegations only, but they are various; some have been made by Ms A, some by third parties.

2 A number of the allegations arising were discussed between Ms A and staff of the Child and Family Agency (CFA) on 30th March, 2015. Those staff were sufficiently concerned by the substance of this discussion that, on 31st March, CFA staff attended at Ms A's family address with members of An Garda Síochána. The CFA staff recommended to Ms A that she depart from the family home with her children to safe accommodation. It seems to have been a very upsetting occasion for all the family, and understandably so. Ms A indicated that she did not want to leave the family home. However, she was advised that if she did not bring the children to a place of safety, the Gardaí would consider making application for Child X and Child Y to be placed in care.

3 Seemingly convinced that her departure from the family home would be a short-term measure only, Ms A agreed to leave with her two children. In fact, this was the beginning of a more protracted split than the two days that Ms A claims was advised to her by CFA staff on the 31st. The CFA indicates that, if such a timeline was mentioned, it was the timeline for an initial consideration of matters, not a full and final resolution of how best to proceed. Ms A is a mother who naturally wants the best for her children and the court suspects that, to use a colloquialism, in her “heart of hearts” she must have realised that resolving the delicate issue of how best to ensure her welfare and that of her children, in light of the serious allegations made against Mr B, was never something that could be achieved by or with the CFA within a 48-hour timeframe.

4 A brief timeline of some relevant events is set out below. To preserve the privacy of the parties, this is confined to certain principal events arising, and is not a summary of the detailed evidence placed before the court.

- 30th March, 2015 Meeting between Ms A and CFA.

- 31st March, 2015 CFA strategy meeting held; CFA and Gardaí attend at

family home. Ms A and children move to refuge and thereafter to safe house.

- 14th April, 2015 Incidental action taken in respect of Mr B.

- 27th April, 2015 “Child Protection Conference” held.[1] Decided to place

details of Child X and Child Y on Child Protection notification System (CPNS).[2]

- 13th May, 2015 Incidental action taken in respect of Child X.

- 27th May, 2015 Further Child Protection Conference held.

- June/July, 2015 Various interactions between CFA and family.

- 8th July, 2015 Leave to seek judicial review of CFA actions granted.

[1]A “Child Protection Conference” is an inter-agency, inter-professional meeting convened by designated person within the CFA. The purpose of the Conference is to facilitate the sharing and evaluation of information between professionals and parents, to consider the evidence as to whether a child has suffered or is likely to suffer significant harm, to decide whether a child should have a formal child protection plan and, if so, to formulate such a plan. A child protection plan is an inter-agency plan that sets out what changes need to happen to make sure that a child or young person is safe and that her or his needs are met. The aim of the plan is to reduce or remove identified risks so that a decision can be made to cease the child protection plan.

[2] The CPNS records the names of children who have child protection plans agreed in respect of them at a Child Protection Conference. The CPNS can only be accessed by a very small group of people who might need to make important decisions about the safety of a child, e.g. doctors or Gardaí. A child's name is listed on the CPNS as “active” or “inactive”. The term “active” means that there is a child protection plan in place (because it has been decided that the child is at risk of significant harm and needs support to be safe and well). The term “inactive” means that a child was previously at risk of such significant harm and had a child protection plan in the past. Such a child may need some support to remain safe and well. When a child's name is placed on the list, parents receive a letter advising them of this. If a child's status is “active”, a review meeting must take place within six months to ensure that the relevant child protection plan is working. If it is decided that a child is no longer at risk, her or his status on the CPNS will be made inactive and the parents will be given a letter to this effect. The child's name will not, however, be completely removed from the list when s/he reaches the age of 18 years.

5 Along with the order granting leave to seek judicial review on 8th July last, an order was made by the court (Noonan J.) that the CFA ‘be stayed from taking any further action to dis-entitle or prevent the [family] from living together as a family until the determination of the application for judicial review or until further Order…’. Without objection from Ms A, this order of stay was lifted by this Court on 30th October.

PART 2: RELIEFS SOUGHT

6 Various reliefs have been sought by Ms A in these proceedings. Some of the reliefs initially sought have been abandoned or are now redundant. The court understands that the following are the remaining reliefs sought:

(1) an order of certiorari in respect of the decision of the Child Protection Conferences of 27th April and 27th May, 2015 in relation to the welfare of Child X and Child Y and the continuing separation of the family unit;

(2) an order of certiorari in respect of the decision on 27th April to place Child X and Child Y on the Child Protection Notification System;

(3) a declaration that the CFA acted in violation of Applicants' constitutional rights in not allowing Ms A to bring legal representation to the Child Protection Conferences;

(4) an interlocutory injunction restraining the CFA from taking any further action to dis-entitle or prevent Ms A, her children and Mr B from living together as a family;

(5) a declaration that the actions of the CFA ‘in issuing an ultimatum to the Applicant's family unit to separate in lieu of a threatened Court intervention’ on 31st March, 2015 were ultra vires, disproportionate to the ends achieved and in contravention of the rights of Child X and Child Y under Article 42A of the Constitution;

(6) an order of mandamus compelling the CFA to effect the immediate restoration of the family unit and to withdraw the threat of orders under the Child Care Act 1991; and

(7) various ancillary reliefs.

PART 3: THE LEGAL ROLE OF THE CHILD AND FAMILY AGENCY

7 The jurisdiction of the CFA derives from the Child and Family Agency Act 2013. However, the statutory basis for much of the CFA's activities is the Child Care Act 1991. Section 3 of the Act of 1991 provides as follows:

‘(1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.

(2) In the performance of this function, a health board shall –

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise –

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.’

8 In addition, Article 42A of the Constitution, and also the European Convention on Human Rights, oblige the...