P.H. v Child and Family Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 25 February 2016
• Neutral Citation: [2016] IEHC 106
• Docket Number: [2016 No. 113 J.R.]
• Court: High Court
• Date: 25 February 2016

[2016] IEHC 106

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 113 J.R.]

BETWEEN

P.H.

AND

L.H.T. (A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND P.H.)

APPLICANTS

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT

Family – The Child Care Act 1991 – Child care orders – Judicial review – Welfare of child

Facts: The applicants sought leave to restrain the further hearing of an application filed by the respondent before the District Court on a fixed date in February 2016 after obtaining a further care order from the District Court on that application in relation to the care of the second named applicant/child. The first named applicant being the mother of the second named applicant contended that since there was already an existing care order in place with the date of hearing fixed for March 2016, the hearing in February 2016 would lead to an abuse of the process of law. The first named applicant objected to the conduct of the respondent in serving direct notice of the application for a further care order and the manner in which the entire matter had been dealt with by the respondent. The respondent contended that since an appeal before the Court of Appeal under art. 40 of the Constitution had been listed in February 2016, a day before the date of hearing before the District Court, the grant of leave by the Court would be to cut across the Court of Appeal.

Mr. Justice Richard Humphreys granted leave to the applicants. The Court granted an order to the effect of restraining the identity of any non-professional persons indentified in the proceedings on a permanent basis. The Court granted an order to restrain the District Court from considering an application for a care order, interim care order or renewal order until the date already fixed before the District Court in March 2016. The Court directed the first named applicant to provide all the relevant documents and details concerning the art. 40 application. The Court observed that the applicant had met the threshold for granting leave and the fact that the present proceedings would become moot when the case would come at hearing before the District Court on an already appointed date in March 2016 was not a bar to grant leave. The Court held that the application filed by the respondent to obtain a further care order in relation to the child while an existing care order was in place was an abuse of the process of law. The Court criticised the conduct of the respondent to directly serve notice of the application to the first named applicant as being unethical and unprofessional ignoring the fact that the first named applicant had duly appointed solicitors to represent her case in the District Court proceedings. The Court reiterated the principles governing the welfare of the child, especially art. 42A of the Constitution, with emphasis on the rights and best interests of the child.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th day of February, 2016

1 In November, 2015, social services in England indicated to the first named applicant, who was then pregnant and resident in that jurisdiction, that it was intended to take her (as then unborn) child into care on birth. In the same month, she relocated from England to this country.

2 On 13th January, 2016, the second named applicant was born. On 15th January, 2016, the respondent applied ex parte to the District Court for an emergency care order under s. 13 of the Child Care Act 1991. An eight-day order was made by that court. An issue has arisen as to whether the order dated from the date it was made or when it was implemented, which was not for a further 7 days. On the face of the order it would appear to be the former.

3 On the 22nd January, 2016 the second named applicant was removed by Gardaí under the order and delivered into the custody of the respondent.

4 On 28th January, 2016 an application for an interim care order under s. 17 of the 1991 Act was made to Judge Browne by the agency. The learned judge made an ‘interim’ care order without having been apparently able to hear complete evidence on that date.

5 On 2nd February, 2016 following a more full hearing the care order was extended for 29 days until 1st March, 2016. The applicants submit that this further order is invalid because there is an absence of compliance with statutory prerequisites under s. 3 of the Child Care Act, 1991 and because a s. 17 order can only be made when a s. 18 application has been or is about to be made which was not the case. Furthermore it is submitted that the reasons given were insufficient and there were errors on the face of the order.

6 While it is not stated in the order, I am told and accept that the learned judge nominated 1st March, 2016 as the date for the matter to be re-listed. Mr. Paul Anthony McDermott S.C. who appears (with Ms. Sarah McKechnie B.L.) for the respondent did not seriously dispute that this direction was given. This is the current order in force as of today's date.

7 Mr. McDermott suggested that unless restrained by intervention of the District Court, the first named applicant might move on to some third country. However, there is no evidence that the first named applicant is in a position to move on to a third country, let alone has a contingency plan to do so. In the absence of any such evidence or indication, it is not especially helpful for the agency to proffer such scenarios.

8 The scene then shifted to the High Court. On the applicants' motion, McDermott J. directed an inquiry under Article 40 of the Constitution on 10th February, 2016. On that date, the respondent put before the court a document entitled ‘Certificate of Detention’ in answer to the inquiry, relying on the order of 2nd February, 2016. That is the current certificate in the Art. 40 proceedings and there has been no application to any court for leave to vary, amend or supplement it.

9 On 12th February, 2016 the substantive Art. 40 application was refused by O'Regan J. I am told by Mr. McDermott that the learned judge suggested (although this was not part of her ex tempore ruling) that the agency should go back to the District Court to clarify when the 29 days ran from, because there could be an ambiguity as to whether it ran from 28th January or 2nd February, 2016. As it was explained to me, it was not immediately apparent how to interpret this suggested comment, because there is no ambiguity apparent on the face of the order. The order clearly specifies that the 29 days runs from 2nd February, 2016. Oddly enough, the agency denied in the hearing before me that there was any such ambiguity, and did not seek to stand over the suggestion of ambiguity as such. The applicants state in supplementary written submissions that ‘ The Applicants do not believe that the position/issue regarding time can be read into the Orders as they are presented, and are somewhat confused by the logic.’ Thus the curious position arises that neither side appears to be adopting the suggestion that there is an ambiguity in the existing order which inferentially could warrant some form of application to the District Court whether under the slip rule or otherwise. However, despite its denial of any infirmity or even ambiguity in the order in question, the agency appears to be relying on this suggested comment as a basis for what it did next.

10 Before coming to that, the first named applicant's next step following refusal of relief under Art. 40 was to file notice of appeal to the Court of Appeal on 15th January, 2016. Ms. Berenice McKeever B.L. (with Mr. Fergal Kavanagh S.C.) for the applicants says that on that date she sought without success to contact the respondent's lawyers, and then went into court (Irvine, Hogan and McDermott JJ.) to mention the matter, at which point it was put into the directions list on 18th February, 2016.

11 The respondent's next move, apparently inspired by the comment of O'Regan J., was that on 16th February, 2016 despite the ongoing existence of a care order, for which a further hearing date of 1st March 2016 had already been fixed by the District Court, notice of an application for a further care order, returnable for 25th February, 2016 was served by Mr. Padhraic Harris of Padhraic Harris & Co., Solicitors, Galway, solicitors for the agency, on the first named applicant personally (and a copy sent to solicitors acting on her behalf informing them that their client had been served directly). This was in the context where the applicants had solicitors previously nominated and acting in the District Court.

12 Mr. McDermott submits that this further application has nothing to do with the Art. 40 proceedings. I would reject that suggestion. It seems to me that in its context, the inference that the further application to the District Court is designed to improve the position of the respondent in the context of the Art. 40 proceedings is virtually irresistible.

13 On 17th February, 2016, the Court of Appeal delivered judgment in McDonagh v. Governor of Mountjoy Prison (No. 2) [2016] IECA 32, in which it was decided that a respondent to an Art. 40 application who wished to supplement or amend his or her certificate must first apply to the High Court for leave to do so (although the reference to application to the High Court was in the context where the appeal was being allowed and the matter remitted to that court).

14 On 18th February, 2016, Ryan P., taking the directions list in the Court of Appeal, was informed of the proposed District Court application by counsel for the agency, and the hearing date of Friday 26th February, 2016, was fixed in the knowledge that the District Court would be dealing with this matter on Thursday 25th February, 2016. Mr. McDermott submits that this shows that the court was happy with the notion that the hearing on the 25th February would go ahead, and that for me...