S.O.T.A. (A Minor) v The Child and Family Agency
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 27 November 2018 |
| Neutral Citation | [2018] IEHC 714 |
| Court | High Court |
| Docket Number | [2018 No. 948 J.R.] |
| Date | 27 November 2018 |
[2018] IEHC 714
THE HIGH COURT
JUDICIAL REVIEW
Noonan J.
[2018 No. 948 J.R.]
AND
Care orders – Proportionality – Adjournment – Applicants seeking to quash care orders – Whether the emergency care order was constitutionally proportionate
Facts: The applicants, in judicial review proceedings, applied to the High Court seeking to quash two care orders of the District Court made in respect of the first applicant. The first applicant is the child of the second applicant and the notice party. The applicants submitted that the application for the emergency care order (ECO) of the 7th November, 2018 ought not to have been made ex parte as there was no evidence before the District Court that the matter was so urgent that it could not proceed on notice to the second applicant. It was submitted that what had occurred in this case in pursuit of the ECO was disproportionate both in the context of the Constitution and Article 8 of the European Convention on Human Rights. It was further submitted that the respondent, the Child and Family Agency (CFA) had failed to comply with the requirements of O. 84 r. 6 (2) of the District Court Rules which require that the ECO must be served with a copy of the affidavit which grounded the application and a note of the oral evidence given, neither of which had occurred in this case. The applicants also submitted that the European jurisprudence requires that for such a draconian remedy as the separation of a new born baby from its mother to be contemplated, the court must hear evidence of what less extreme alternatives were considered by the CFA and outruled before the application was brought. With respect to the interim care order (ICO) of the 9th November, 2018, the primary challenge was based on the refusal to grant an adjournment which it was said left the notice party’s and the second applicant’s lawyers in the position of not being able to provide effective representation for their clients, amounting to a denial of fair procedures in circumstances where reliance was placed by the CFA on the historical events relating to the other nine children of the family being taken into care without the reports that grounded those applications being made available and thus permit effective cross examination. A procedural point was also taken that two clear days’ notice was required under the District Court Rules and the order did not provide for any abridgment of the time stipulated by the rules. It was also said that the refusal of the District Judge to grant an adjournment was not based on any actual evidence of urgency but rather merely on the fact that the ECO had been made ex parte and this implied urgency despite the fact that the notice party and the second applicant were unrepresented at that hearing.
Held by Noonan J that the ECO could not be regarded as either constitutionally proportionate or Convention compliant and for that reason must be quashed. Noonan J was satisfied in all the circumstances that the District Judge came to the correct conclusion in declining to adjourn the case; he was faced with the extremely difficult task of balancing the competing constitutional rights of the parents and the child and he appropriately and correctly had regard to the primacy of the child’s rights.
Noonan J held that he would grant an order of certiorari quashing the ECO and refuse the relief sought in respect of the ICO.
Application granted in part.
In these judicial review proceedings, the applicants seek to quash two care orders of the District Court made in respect of the first named applicant. The first applicant (‘Baby A’) is the child of the second applicant (‘Mrs. A’) and the notice party (‘Mr. A’). The facts of this case are sad and at times distressing but it is necessary to refer to them in some detail to gain an understanding of the issues that confronted the District Court in making the impugned orders.
Mr. A and Mrs. A came to Ireland some sixteen years ago and have lived here ever since. Apart from Baby A who was born on 6th November, 2018, they have nine other children ranging in ages from sixteen to two. All of these children are the subject of care orders made by the District Court. The general background to the matter is given in two detailed reports of the 7th and 8th November, 2018 respectively compiled by Amelia Marley, a social worker employed by the respondent (‘the CFA’).
The family first came to the attention of the CFA on 4th June, 2014 when Mr. and Mrs. A were involved in a car accident with three of their seven children. They were driving from the Midlands, where they lived, to Cork. It emerged that Mr. and Mrs. A left the remaining four children then aged twelve, eight, six and four, behind unsupervised for a significant period of time. On the day following the car accident, the eldest child, SA, telephoned the Gardaí to report a long history of physical and emotional abuse by his father. Arising from this report, an emergency care order was made by the District Court. This was followed up by an interim care order. Some days later, the eldest child returned home of his own accord threatening to self-harm if he was removed. In July, 2014 a supervision order was granted.
In August, 2014, the family relocated to another county without notifying the CFA.
In January, 2015 a neighbour expressed concern for Mrs. A's behaviour. She was reported to be regularly found shouting at the front door of her house at night but not at any one or thing. In August, 2015, Mrs. A presented to a local medical centre with three of her children, two of whom had evidence of serious burns. The attending doctor felt that one of the children, then three months of age, had a burn of sufficient severity that he could not be treated at the clinic and required hospital admission. The doctor accordingly called an ambulance and when it arrived, it was found that the family had absconded. The Gardaí had to search for them and when found, arrange for their transport to A&E by ambulance. It was felt that the burns were not consistent with the explanation given by the parents.
Later in August, 2015, a supervision order was granted to remain in place for a further year. In January, 2016, the CFA convened a meeting to consider the family situation in consultation with other parties including the schools attended by the children. In February, 2016, Mrs. A reported to CFA social workers that angels, spirits and demons were molesting her children at night time resulting in Mrs. A being unable to sleep. Later in February, 2016, CFA social workers observed during a home visit a large gap in the bannisters of the stairs which posed a risk to the children. They asked Mrs. A for the landlord's number to have it repaired and she refused to disclose it but said she would fix it as a matter of urgency.
Five days later, the paediatric department of a hospital in the Midlands reported that one of the children suffered a serious head injury as a result of falling through the bannisters. During visits to the hospital by Mrs. A, she was observed by medical staff to be talking to invisible spirits, ghosts and aliens all night long. She was observed putting nail polish on the child's forehead and claiming there was sugar on the bed when there was none. On the same date, three of the children were admitted to care under voluntary consent.
In March, 2016, a report was received from a local pre-school where one of the children had commenced two months earlier that the child was arriving into school with obvious signs of neglect and having no socks, underwear and minimal clothing and no lunch. He appeared to be wearing pyjamas under his trousers. Later the same month, during a home visit by CFA social workers, it emerged that the eldest child had been missing for four days without any notification to the Gardaí or the CFA. During this visit, Mrs. A was observed attempting to assault one of her children. On the same day, five of the children were admitted to care. Following that admission, the children exhibited behaviour consistent with abuse and neglect.
In June, 2016, Mrs. A was expecting and the CFA held a child protection case conference at which it was decided that the baby should be admitted to care following her birth. Mrs. A attended this conference and indicated that she would like the baby to enter into care as demons and aliens may take her and that the same demons were responsible for pushing the other child through the bannisters in February. The baby was born on 24th June, 2016 and entered into care three days later.
Ultimately care orders were made in respect of all nine children by the District Court on 13th March, 2017. These orders were made unopposed by Mr. and Mrs. A. They have not sought to exercise their right of access to any of the children in the past eight months, the only contact of any description being telephone calls by Mrs. A to her eldest child.
It would appear that in the early part of 2018, Mrs. A became pregnant. She was attending a Dublin maternity hospital for ante-natal care and her booking visit took place on 30th April, 2018. On that occasion, she disclosed to the attending health care worker that she had nine other children currently in foster care. She agreed to a referral to the medical social work department of the hospital. She was telephoned by a medical social worker, Ms. CN who made two appointments to meet her, neither of which Mrs. A attended. Ms. CN first met Ms. A on 26th July, 2018 when she requested assistance to separate from her husband. She told Ms. CN that she was the spirit of a human heart and that when her husband tries...
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