The Child and Family Agency -v- McG and JC,  IESC 9 (2017)
|Party Name:||The Child and Family Agency, McG and JC|
An Chúirt Uachtarach
The Supreme Court
Supreme Court appeal number: 2015 no 000094
High Court record number: 2015 no 1796 SS
 IEHC 733
 IESC 000
S McG and JC (habeas corpus in child care) Applicants/Respondents
- and -
The Child and Family AgencyRespondent/Appellant
Judgment of Mr Justice Peter Charleton, delivered on Thursday 23rd February 2017
This appeal concerns the applicability and scope of the remedy of habeas corpus as it is delineated in the Constitution, particularly in its application to child care cases.
On 29th October 2015, the District Court in Dublin made an interim care order under s. 17 of the Child Care Act 1991 (as amended), removing the children from mother and father, the respondents on this appeal, and placing them under the care of the Child and Family Agency. The mother and father had, at the time of the making of the care order, and continue to have, serious drug addiction problems. Swiftly, because of a concern by their lawyers that their procedural interests had not been respected, an application was made to the High Court under Article 40.4.2º of the Constitution to inquire into the lawfulness of the detention of the children. The issue centred on whether the parents had been heard. An adjournment of a week was sought to allow the father to obtain legal representation and to allow the mother to properly instruct her solicitor who was not appointed until the morning of the hearing. This was consented to by the Child and Family Agency, but refused by the District Court. By judgment of Baker J in the High Court of 17th November 2015, it was held that there had been a failure by the District Court to afford the mother and father an opportunity to “fully engage with the evidence.” As the interim care order application in the District Court concerned “the day-to-day relationship and care of the children by their mother, and the ongoing contact between the children and their mother, the frailty in making the order impact[ed] on its validity in a way that failed to engage the welfare of the children and their place in the family unit”, an order of release from custody under Article 40.4.2º was ordered by the High Court. This final, and necessarily unsophisticated, order was tempered, after hasty negotiation, by an agreement between the Child and Family Agency and the parents so that the parents did not then have their children returned to their care. The order of the High Court was not implemented straight away but, an opportunity was instead given to the Child and Family Agency to return to the District Court and obtain another order under the Act of 1991. Since the date of the first application, the children remain in foster care under the Child and Family Agency. An update on the chronology filed indicates that both parents continue to struggle with drug addiction problems. The Child and Family Agency have directly appealed the High Court order by leave of this Court. The Child and Family Agency regard as anathema the application of any habeas corpus type remedy to child care matters. The leave given by this Court includes these issues:
Where children are made subject to an interim care order under section 17 of the Child Care Act 1991 requiring “that the child named in the order be placed or maintained in the care of” the applicant Child and Family Agency, are such children ever subject to a habeas corpus remedy under Article 40.4.2º of the Constitution as being “unlawfully detained"?
Whether the availability of other remedies besides habeas corpus under Article 40.4.2º, such as an appeal and in the context of such provisions in the Child Care Act 1991 as sections 21 to 23, or such as judicial review, such as to remove such cases from the jurisdiction of Article 40.4.2º?
As a matter of principle, is the habeas corpus remedy under Article 40.4.2º of the Constitution appropriate for child care issues?
An issue has also arisen in respect of mootness, contained in grounds of appeal 1 and 2, as the original District Court order which subsisted only for a limited time, is now spent and has been replaced by other orders. Since, on any view, the children are now in the lawful custody of the Child and Family Agency, the mother and father have claimed that any issue as to the correctness of the High Court judgment is spent. That is not agreed. Further, the parents of the children are no longer seeking to have their children returned to them from foster care, at least until their personal situation improves. While this appeal may be an exercise in the correction of an error by the District Court, it is entirely futile as to the paramount consideration of every court in child care matters, which is the welfare of the children. The judge of the High Court was apparently persuaded that the remedy against a chaotic release that is explicitly in the 1991 Act was inapplicable. This was wrong.
The Child Care Act 1991
The Child Care Act has been amended since its enactment in April 1991, most particularly by the Children Act 2001, the Health Acts 2004 and 2007, the Child Care (Amendment) Acts 2007 and 2011 and by the Child and Family Agency Act 2013, which had the effect of setting up an agency of that name to fulfil what were previously functions of a health board. The main function of the Child and Family Agency is set out under s. 3 of the Act of 1991 as amended, which provides that the Agency shall “promote the welfare of children who are not receiving adequate care and protection.” Under s. 4, the Child and Family Agency has a duty to take “into its care” any child which “requires care or protection which he [or she] is unlikely to receive unless” that child is taken into care. Section 12 empowers gardaí to remove a “child to safety”, where there are “reasonable grounds for believing that there is an immediate and serious risk to the health or welfare of a child” such that “it would not be sufficient for the protection of the child” to await the making of an application to the court for an emergency care order under s. 13. A child so removed to a place of safety must be the subject of an application for such an order within 3 days, and a special sitting of the District Court may be so arranged. There are consequential powers which involve the exercise of the coercive authority of the State.
The emergency care order under s. 13 is made on the same basis of “an immediate and serious risk to the health or welfare of a child” but also encompasses a risk of abduction or hiding the child where such behaviour would create a serious risk. Orders made under s. 13 may last for up to 8 days. In executing the order, the gardaí have similar powers of entry as in section 12. If the “urgency of the matter so requires”, the application to the District Court may be made without notice to the parent or person acting in the place of a parent. Under s.14, such a parent must be informed “as soon as possible” that the child is in the care of the Child and Family Agency, unless the parent is missing. The serving of the court order may constitute notice. Clearly, the powers contained in ss. 12 and 13 are emergency measures.
Under s. 16 the Child and Family Agency is authorised, and duty bound, to bring care proceedings, which are on notice to parents and guardians. These are mandated where “a child requires care or protection which he [or she] is unlikely to receive unless a court makes a care order or a supervision order”. It may be noted that in describing a care order, no distinction is drawn between an emergency care order, an interim care order or any longer term of care order in terms of the power to apply for such an order and the duty to apply for such an order. This context is important in discerning the intention of the legislature, since while specific descriptions are given to various forms of care order; s. 16 in common with s. 23 simply refers generically to care orders. The legislation also provides for special care orders and interim special care orders under Part IVA. Sections 16 and 23 do not refer to types of care order as “emergency” or “interim” in such a way as to take them outside the general definition of a care order, the mandate of the Child and Family Agency in that respect, and the overarching duties of child protection which the legislation establishes. Within this context, the wording of s. 17 – which governs the making of interim care orders – does not contradict the generality of the meaning of what is a care order. It provides a jurisdiction to the District Court to make an “interim care order” but only where “an application for a care order … has been or is about to be made (whether or not an emergency care order is in force)”. An interim care order under s. 17 is only to be made where it is “necessary for the protection of the child’s health or welfare” and, of necessity, this also encompasses grounds set out in s. 18(1) that the child “has been or is being assaulted, ill-treated, neglected or sexually abused”, or the child’s “health, development or welfare has been or is being avoidably impaired or neglected” or “is likely to be avoidably impaired or neglected”. An interim care order is made, “pending the determination of the application for the care order”. The general limit to such an order is, under s. 17(2)(a), 29 days, but may be made for a longer period where there is parental consent. An extension may also be granted on the application of any of the parties, where the court is satisfied that the “grounds for the making of an interim care order continue to exist with respect to the child”.
Under s. 18, a care order commits “the child to the care of the Child and Family Agency for as long as he [or she] remains a child” or for a shorter period. The court may of its own motion or on application extend the operation of the care order. While such an order...
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