The Child and Family Agency v L.L.

CourtCourt of Appeal (Ireland)
JudgeBirmingham P
Judgment Date09 May 2022
Neutral Citation[2022] IECA 107
Docket Number[2022 No. 19]

In the Matter of FO, a Child,

In the Matter of Part IVA of the Childcare Act 1991

In the Matter of Article 42(A) of the Constitution of Ireland

And in the Matter of an Application to Extend the Duration of Special Care Order in Respect of FO

The Child and Family Agency
First Respondent


Second Respondent

[2022] IECA 107

Birmingham P.

Haughton J.

Barniville J.

[2022 No. 19]



Special care – Best interests – Statutory preconditions – Appellant appealing against a special care order – Whether the statutory preconditions to the making of the order were met

Facts: The High Court (Jordan J), on 11th January 2022, in the course of the Minors’ List, extended a special care order in respect of a minor. He did so on foot of an application by the first respondent, the Child and Family Agency (the CFA), to extend an order then in place. The application was supported by the second respondent, the minor’s guardian ad litem, but was opposed by the appellant, the minor’s mother. The appellant appealed to the Court of Appeal. The statutory framework governing the special care regime was introduced by the Child Care (Amendment) Act 2011, s. 10 of which substituted and inserted Part IVA into the Child Care Act 1991. Part IVA, which was commenced on 31st December 2017 by S.I. No. 637 of 2017, was the key provision in that regard. The appellant said that the legislature’s reference to the phrase “continues to exist”, set out in s. 23J(1)(b), precludes, on a literal interpretation, reliance upon behaviour that previously but no longer exists. It was said that the three distinct assessments that the High Court is required to make – labelled as the “adequacy test” in s. 23J(1)(c), the “alternative care test” in s. 23J(1)(d) and the “necessity test” in s. 23J(1)(e) – are wholly inconsistent with the narrow focus, as contended for by the CFA, on only those alternatives that the CFA is then in a position to provide. It was said that if it were otherwise, the tests set out in ss. 23J(1)(c)-(e) would be redundant, as the “best interests test” provided by s. 23J(7) would be the sole consideration. To this, the CFA retorted that what the appellant contended operated on the basis that a child actually in need of special care should be discharged to face risks in the community because ‘notionally’, they could be provided with a community placement, even though, in reality, no such placement was available, adding that it was impossible to see how such a proposition could be seen as vindicating the rights of a child or as being in the best interests of a child. The CFA said that if a purposeful approach is taken, the position is clearer. The long title of the Child Care Act 1991 set out that it was “to provide for the care and protection of children and for related matters”. It was hard to see, the CFA submitted, how a purposive approach could see a child discharged into the community to the uncertain future of the after-hours service where no suitable follow-up placement was actually available.

Held by Birmingham P that, having addressed the issues in terms of the choice that was presented to the judge in the High Court to extend special care or to discharge the minor to the community and the uncertainties of the out-of-hours service, while referring to this as a binary choice in the course of exchanges with counsel, it was a choice which could be exercised only one way. Birmingham P held that it was clear from the transcript and the submissions of the parties in the Court of Appeal that the High Court was dealing with a particularly complex and difficult case; however, it was also clear that the judge was conscious of and concerned about the fact that problems with identifying stepdown placements were arising all too frequently. Birmingham P held that it was clear to all concerned that this was not a new phenomenon. Birmingham P did not believe that there could be any question of a judge allowing himself or herself to be overwhelmed by frustration into making an order which was not in the best interests of the child.

Birmingham P held that the orders made in the High Court were unquestionably in the best interests of the minor. For that reason, and specifically because all of the statutory preconditions to the making of the order were met, Birmingham P dismissed the appeal.

Appeal dismissed.

JUDGMENT of the President delivered on the 9th day of May 2022 by Birmingham P


. On 11 th January 2022, the High Court (Jordan J.), in the course of the Minors' List, extended a special care order in respect of F (“the minor”). He did so on foot of an application by the Child and Family Agency (“the CFA”) to extend an order then in place. The application was supported, albeit with great reluctance, by LH, the minor's guardian ad litem (“GAL”), but was opposed by LL, the minor's mother. Before addressing what occurred in the High Court and the arguments that have been advanced in this Court arising therefrom, it is appropriate to say something about the background to the application brought by the CFA and to refer to the relevant statutory architecture, including the legislative history.


. F is fifteen years of age. He was born in June 2006, and has been in the care of the CFA since late November 2011. The child's history is a very troubled one: fourteen placements have broken down; there was concern that he was using, and indeed, supplying and dealing drugs; he engaged in physical violence, including violence directed at foster carers; and he participated in organised fights that were videotaped and posted on social media. He is a talented boxer. One incident saw him involved in an encounter which saw a 15-year old child from an ethnic minority being “bottled” in the face, followed in response by an assault on F by an adult from that community. Another placement broke down as a result of F's involvement in the intimidation of an elderly neighbour, giving rise to concerns about retribution against F from vigilante groups.


. Concerns in relation to F heightened during mid/late 2021. The concerns centred on, but were not confined to, the use and dealing of illicit drugs, the risk to others involving assaults on care staff and previous foster carers, and concerns heightened by his prowess as a boxer. There were also concerns about acts of criminal damage which precipitated such a response within the local community that there were efforts made by that community to secure his removal from the area where the placement was. Further concerns were raised about risks to his life, safety, health, development and welfare. He was absent from education. While he had started secondary school in September 2019, there was very limited attendance from November 2019 onwards. There were frequent episodes of him being missing in care, to the point where, prior to being placed in special care, he was hardly ever in his placement. At this stage, he had entirely disengaged from the various agencies and support services that were supposed to be working with him, such as speech and language support, psychology, psychiatry and social work. At this stage, there was also an engagement with the criminal justice system.


. All of the conditions for special care would seem to have been satisfied, but the CFA was slow to move, presumably because of pressure on resources and a shortage of beds, though the matter was brought before the Special Care Referrals Committee (the CFA's decision making body) on or around 31 st August 2021, when F was approved for a period in special care. However, in a situation where, despite the fact that all concerned, including F's mother, were in agreement that special care was warranted, no application was presented before the Court, and in these circumstances, the GAL felt compelled to bring judicial review proceedings. This was a highly unusual development. In the course of the appeal hearing, senior counsel on behalf of the GAL made the point that in his twenty years working in this area, this was the first occasion that he had moved such an application. The GAL's application for judicial review was initially adjourned to be heard on notice, but gave rise to the CFA moving an application for an interim special care order on 5 th October 2021, which was given effect to with assistance from An Garda Síochána. An application for a further interim order was made on 8 th October 2021, before an application was made for the full special care order on 13 th October 2021, which, in the ordinary way, was due to expire on 12 th January 2022. It should be noted that all three orders were supported by all relevant parties: the CFA, the GAL, and the minor's mother.


. After F was placed in Crannóg Nua with the assistance of An Garda Síochána, he initially struggled to adapt to the special care regime. This would not be at all unusual; however, he soon settled. The submissions on behalf of the appellant describe the period in special care in these terms:

“As of the 10 th December 2021, the final Court Review of the Special Care Order, F's engagement with ACTS [Assessment Consultation Therapy Services] was excellent, he was attending weekly therapeutic sessions and engaging in a Speech and Language Assessment, he was attending all of his medical appointments ( e.g. CAMHS, optician, dentist, GP for medical check etc), he was engaging well with extra-curricular activities and engaging successfully with his mobilities away from the unit. He was impressively participating throughout his child in care reviews, had settled into his school routine and was applying himself positively to his education programme, attending daily and had been awarded student of the week. His behaviours had improved and he planned to stay in school on leaving special care. He was looking healthier and his diet was improving. He was progressing in...

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