W v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 03 January 2014
• Neutral Citation: [2014] IEHC 8
• Docket Number: Record Number: No.2226 SS/2013
• Court: High Court
• Date: 03 January 2014

W v Health Service Executive

Between:

W

Applicant

And

Health Service Executive

Respondent

[2014] IEHC 8

Record Number: No.2226 SS/2013

THE HIGH COURT

Constitutional law - Habeas corpus - Bias - Objective and subjective - Interim care order - Child Care Act 1991 - Article 40.4.2 of the Constitution

Facts: The proceedings arose pursuant to Article 40.4.2 of the Constitution for the release of the applicant from his detention under the interim care order under the Child Care Act 1991. The Court considered whether there was sufficient evidence for the making of the order and how the subjective and objective bias on the part of the District Judge as alleged as to the manner in which he had conducted himself infected the lawfulness of the hearing. Both of the parents of the applicant were homeless.

Held by Peart J. that the evidence before the District Judge was more than sufficient for him to provide an order under s. 17 of the Act of 1991. These matters raised were not appropriately dealt with pursuant to Article 40.4.2 of the Constitution.

CONSTITUTION ART 40.4.2

CHILD CARE ACT 1991 S17(1)

CURIAR v HEALTH SERVICE EXECUTIVE UNREP BIRMINGHAM 8.11.2013 (EX TEMPORE) [TRANSCRIPT NOT AVAILABLE]

CHILD CARE ACT 1991 S17

CHILD CARE ACT 1991 S18(1)

CHILD CARE ACT 1991 S18

CHILD CARE ACT 1991 S18(A)

CHILD CARE ACT 1991 S18(B)

CHILD CARE ACT 1991 S18(C)

CHILD CARE ACT 1991 S18(5)

MAHER v JUDGE ANTHONY KENNEDY & ORS UNREP HOGAN 6.5.2011 2011/34/9433 2011 IEHC 207

CONSTITUTION ART 40

A (K) v HEALTH SERVICE EXECUTIVE 2012 1 IR 794 2012/1/63 2012 IEHC 288

FARBEY ET AL THE LAW OF HABEAS CORPUS 3ED 2011 85

S v HARINGEY LONDON BOROUGH COUNCIL 2003 EWHC 2734 (ADMIN) 2004 1 FLR 590

CHILD CARE ACT 1991 S23

Judgment of

Mr Justice Michael Peart

1 The applicant was born prematurely at 29 weeks gestation on the 3^rd October 2013, and remains in a hospital neonatal unit where he is treated for neonatal chronic lung disease, and while slowly learning to feed by teat, still requires to be fed to an extent by nasogastric gavage feed. In addition, he has bilateral inguinal hernias, and these will require surgical repair under anaesthesia once he is stable and off oxygen. In due course he will need to be transferred by ambulance from the present hospital to a specialist paediatric hospital in Dublin, so that his hernias can be repaired.

2 Even when he is ready from a medical standpoint to be discharged from hospital care, the applicant will continue to need very significant and high quality parental aftercare at home over and above what would be required for any newborn baby. It is concerns around that issue, which I shall address in due course, which led to the HSE to make an application to the District Court for an interim care order. That order was granted on the 11^th December 2013 after some 14 hours of evidence and submissions heard over two hearing days. It will expire on the 8^th January 2014, but on that occasion it is anticipated that there will be an application for a full care order which in all probability will not be heard on that date, as it seems to be anticipated that the hearing may take up to four days before a different judge. I am informed that realistically the applicant will have to remain under hospital care for some weeks yet in circumstances where he will undergo surgery foreseeably in the next week or so, and will need to remain in hospital for some period of recuperation thereafter before being discharged either to the care of the HSE under a care order, or to his parents.

3 The present application before me is one under Article 40.4.2 of the Constitution for the release of the applicant from his 'detention' under the interim care order. The application is brought on his behalf by his father and next friend, and with the consent of his mother, both of whom are homeless, without any financial means other than welfare benefit, and each with their own troubled backgrounds, and significant ongoing life difficulties, particularly mother. Nevertheless, they wish to be allowed to have their baby discharged to their care as soon as he is well enough to leave hospital. There was some evidence before the District Court that father's parents who live in Dublin are willing to have mother, father and baby W live with them, and to assist them in the raising of W. While the applicant remains in hospital, mother and father have been provided with accommodation close-by and they visit baby W daily, and it would appear that hospital staff consider that they conduct themselves appropriately during any visits to their son.

4 On Thursday 19^th December 2013, an application was made to me for an inquiry into the lawfulness of the applicant's detention. I directed such an inquiry, and made it returnable before me on Monday 23^rd December 2013, on which date it was adjourned until yesterday, 2^nd January 2014, when it was heard in full. Colman Fitzgerald SC appeared for the applicant, and Timothy O'Leary SC appeared for the HSE.

5 The HSE produced the order of the District Court which was made on the 11^th December 2013, and submitted at the outset that it is an order made under section 17(1) of the Childcare Act, 1991, and is an order which on its face is a valid order, and they submitted that in such circumstances the detention of the applicant on foot of it is in accordance with law. In so far as the applicant's parents are unhappy with the conclusion reached by the District Judge that he was satisfied as to the matters he is required to be satisfied about before making such an order, Mr O'Leary submitted that they are entitled to appeal that decision to the Circuit Court in the usual way where they would have the benefit of a complete rehearing, or alternatively address their concerns by way of judicial review. In such circumstances it is submitted that it is entirely inappropriate to seek to have the matter addressed under Article 40.4.2 of the Constitution.

6 Mr Fitzgerald on the other hand has submitted that if the parents are correct and the District Judge was not entitled on the evidence given before him to make the interim care order, then the order is of no legal effect, and applicant's detention is not in accordance with law. In such circumstances, he submits that an appeal is not the appropriate remedy, and while a remedy might be eventually become available by way of judicial review, an application under Article 40.4.2 of the Constitution is an expeditious remedy in circumstances where a person's liberty is at stake, and urgency is required in obtaining a remedy.

7 Before dealing with the central question as to whether there was a sufficient evidential basis for the making of an interim care order under section 17 of the Act of 1991, I should say that there have been a number of subordinate issues raised by either party. The applicant for example has raised an issue of both subjective and objective bias on the part of the District Judge, which, it is submitted, fatally infects the lawfulness of the hearing and therefore the order made. The respondent has raised an issue as to whether father's interest in these proceedings is in conflict with those of baby W, and whether in those circumstances he is an appropriate person to be acting as next friend of baby W. The respondent has also submitted that once the respondent produces a valid order, as has been done, the onus of proving that it is not a valid order shifts to the applicant. Mr Fitzgerald submits that this is not correct, and that it remains an onus upon the detainer to satisfy the Court that the detention of the applicant is in accordance with law. I have already mentioned that Mr O'Leary for HSE has raised the issue as to the appropriateness of Article 40.4.2 procedure in the circumstances of the present case, and has referred to the comments of Mr Justice Birmingham in a recent ex tempore decision in JC v. HSE, 8^th November 2013. I will say something about these issues in due course, but, having directed an inquiry under Article 40 it is appropriate that I deal with the substantive issue at the core of the application, namely whether in the light of the evidence given to the District Judge on the 13 ^th November 2013 and again on the 11^th December 2013, it was possible for him to have been satisfied as to the requirements of section 17 and therefore to make the interim care order.

8 Section 17 1) provides:

9 2 17.-(1) Where a justice of the District Court is satisfied on the application of a health board thatmdash;

10 (a) an application for a care order in respect of the child has been oris about to be made (whether or not an emergency care order is in force), and

11 (b) there isreasonable cause to believe that any of the circumstances mentioned at paragraph (a), (b) or (c) of section 18 (1) exists or has existed with respect to the child and that it is necessary for the protection of the child's health or welfare that he be placed or maintained in the care of the health board pendins the determination of the application for the care order,

12 (c) the justice may make an order to be known and in this Act referred to as an "interim care order" (emphasis added)

13 9. Section 18(1) provides:

14 2 "18. - (1) Where, on the application of a health board with respect to a child who resides or is found in its area, the court is satisfied that mdash;

15 (a) the child has been or is being assaulted, ill-treated, neglected, or sexually abused, or

16 (b) the child's health, development or welfare has been or is being avoidably impaired or neglected, or

17 (c) the child's health, development or welfare is likely to be avoidably impaired or neglected,

18 and that the child requires care or protection which he is unlikely to receive unless the court makes an order under this section, the court may make an...