W.F. v Q.F. (A Minor)
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 08 November 2018 |
| Neutral Citation | [2018] IEHC 650 |
| Docket Number | [2018 No. 1376 SS] |
| Court | High Court |
| Date | 08 November 2018 |
[2018] IEHC 650
THE HIGH COURT
MacGrath J.
[2018 No. 1376 SS]
IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND 1937
AND IN THE MATTER OF Q.F., A MINOR BORN IN OCTOBER 2018
AND IN THE MATTER OF THE CHILD CARE ACTS 1991 TO 2015
Unlawful detention – Emergency care order – Breach of constitutional rights – Applicant seeking a declaration that an emergency care order was a nullity – Whether a fundamental denial of justice had been demonstrated
Facts: The first applicant, on behalf of her son, the second applicant, applied to the High Court pursuant to Article 40.4 of the Constitution in respect of the alleged unlawful detention of the second applicant who was born in October, 2018 and who was the subject of an emergency care order made in the District Court on 1st November, 2018 made under s. 13 of the Child Care Act 1991. The first applicant submitted that: (i) the District Court judge applied an incorrect test to determine that the threshold under s. 13 had been met; (ii) the emergency care order was brought without adequate notice; (iii) there was a fundamental breach of the rules of natural and constitutional justice in that the applicants had not been given adequate notice that a previous social worker who had been involved in the care of the first applicant's two older children would give evidence or of the nature of the evidence that she might give; (iv) the hearing before the District Court proceeded in breach of constitutional rights and there were fundamental errors of law in the reasoning of the District Judge; (v) the s. 13 order was a nullity and should be declared as such so that when the s. 17 application came before the court, there would be effectively a clean slate without the potential influence of a pre-existing emergency care order on the proceedings.
Held by MacGrath J that, having taken into account all of the circumstances, including the nature of the s. 13 order, its limited duration, and in particular the nature of the illegality alleged (that the District Judge applied the wrong legal test and that evidence was called in respect of which inadequate notice was given), and also having taken into account the fact that the applicants were fully represented throughout the hearing by able solicitor and counsel who were permitted to make applications, objections and observations on the legalities of the procedures employed, he found it difficult to come to the conclusion the line had been crossed to the extent that a fundamental denial of justice had been demonstrated which must be remedied by an order under Article 40.4.
MacGrath J held that he would refuse the application.
Application refused.
This is an application pursuant to Article 40.4 of the Constitution in respect of the alleged unlawful detention of a child, Q.F., who was born in October, 2018 and who is the subject of an emergency care order made in the District Court on 1st November, 2018 made under s. 13 of the Child Care Act 1991 (' the Act of 1991').
This application is brought by the first named applicant, the child's mother, and on behalf of her son, the second named applicant. The application is grounded on the affidavit of applicant's solicitor, Mr. Iain Robertson, sworn on 6th November, 2018. He has therein set out the factual background, none of which facts are challenged on this application.
The first named applicant has two older children, both of whom are in care. The first child who was born in 2014 is the subject of a care order made under s. 18 of the Act of 1991. The order is operative until the child reaches the age of 18. It was made on consent in circumstances where the child is to remain in the care of relatives. The first named applicant's second child was born in 2016 and is the subject of a care order made pursuant to s. 18 of the Act of 1991, to be reviewed on 28th November, 2018. These orders were made in April, 2018. The order in respect of the second child was made on consent in circumstances where the child is being cared for by another relative. When making the order, the Court specified various steps to be taken prior to a review on 28th November, 2018.
In April, 2018, the first named applicant confirmed to a social worker to the two older children (' Social Worker A'), that she was pregnant. Social Worker A advised that the Child and Family Agency, would apply for a care order when the baby was born. In June, 2018, Social Worker A confirmed to the first named applicant that a care order would be sought in respect of the child.
On 23rd October, 2018, the Child and Family Agency convened a child protection case conference which recommended that an emergency care order be sought when the baby was born ' due to the history with the previous two children and the risk posed to the child'.
On the day the mother and child were discharged from hospital, the respondent applied to the District Court for an emergency care order pursuant to s. 13 of the Act of 1991.
Section 13 of the Act of 1991 provides:-
'(1) If a justice of the District Court is of opinion on the application of the Child and Family Agency that there is reasonable cause to believe that–
(a) there is an immediate and serious risk to the health or welfare of a child which necessitates his being placed in the care of the Child and Family Agency, or
(b) there is likely to be such a risk if the child is removed from the place where he is for the time being,
the justice may make an order to be known and in this Act referred to as an "emergency care order".'
An emergency care order subsists for a maximum period of eight days, and may be made for a shorter period. When such an order is made the District Judge has ancillary powers in relation to the protection of a child. Section 13(4)(c) provides that an application for such order may be made ex parte, if the judge is satisfied that the urgency of the matter so requires.
An appeal from an emergency care order does not stay the operation of the order (see s. 13(5)).
What is evident from the wording of the section is that to exercise jurisdiction to make an emergency care order, the District Judge must be satisfied that there is an immediate and serious risk to the health or welfare of the child. On such application the best interests and welfare of the child is the paramount consideration.
On the morning of the application Mr. Robertson was served with notice of the application. It was grounded upon the affidavit of Social Worker A in which she outlined the concerns of the Child and Family Agency regarding the ' immediate health and welfare of the child'. These concerns included:-
(a) the child's mother was not in a position to provide care for the child because of the absence of a suitable and stable support network;
(b) the mother's two other children had been placed at risk, neglected and/or ill treated while in her custody and care, and those children had been placed in care pursuant to court orders;
(c) the child's mother lacked insight into the reasons why the two other children were in the care of the Child and Family Agency; and
(d) the age of the child, and that further, he would be totally dependent on his mother to meet his basic care needs.
Social Worker A averred that there was reasonable cause to believe that the threshold criteria specified in s. 13 had been met; and that was in the best interests of the child to have him placed in care of the Child and Family Agency. She was of opinion that without the protection of an emergency care order there would be an immediate and serious risk to the health or welfare of the child.
This was not the only evidence which was called on the hearing of the application. Mr. Robertson avers while that he was served with the affidavit and notice of the application on the morning of the hearing, at 2.00 p.m. the solicitor representing the Child and Family Agency informed him that a previous social worker who had been involved in the care of the two older children (' Social Worker B') would also be called to give evidence. He protested that he was not on notice and had not been provided with a report from Social Worker B providing an outline of her evidence.
The case commenced at 2.30 p.m. Counsel on behalf of the child's mother raised a preliminary objection to the proposed calling of Social Worker B as a witness. The first reason was that received adequate notice of her evidence had not been received and in this regard, the a report from Social Worker B had not been provided. The second was that her evidence was not relevant to the application for an emergency care order. Such application required the Child and Family Agency to establish that there was an immediate and serious risk to the health and welfare of the particular child. Social Worker B was not the social worker who had been allocated to the child and had not had any contact with the child's mother since April, 2018. It was therefore submitted to the District Judge that Social Worker B's evidence was not relevant to the application before the court.
There was also a discussion regarding the applicable law with counsel for the child's mother placing particular emphasis on the requirement of a present risk to the child's health or welfare. The District Judge stated that she would hear the evidence of Social Worker A and thereafter determine whether she would hear the evidence of Social Worker B.
The hearing continued for some considerable time, the District Judge and the parties" representatives working late into the evening with the judge ultimately delivering judgment just before 10.00...
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