Supreme Court: Woman seeking judicial review of Child and Family Agency access arrangements has appeal dismissed

A woman who was granted five hours of family access per year by the Child and Family Agency has had her Supreme Court appeal dismissed.

Upholding the decision of the High Court to refuse to grant judicial review of the access arrangements in place, Mr Justice William McKechnie said the first application for leave to seek judicial review had been refused on the merits of the case and that it had been an abuse of process to allow her to renew her application on the same grounds.


The appellant, FG, has five children. Her two older children, now adults, had been in care for some time before being discharged into the custody of their father in 2006. Her three younger children were taken into care in November 2013 when they were aged 8, 6, and 2.

In Roscommon District Court in October 2014, the judge made individual care orders under section 18(1) of the Child Care Act 1991 in respect of each of FG’s three younger children, providing that the care orders would be “for so long as each remains a child” and that FG would have such access as would be determined by the CFA.

In February 2015, the Circuit Court made an order affirming the earlier District Court orders.

The CFA granted FG supervised family access – i.e. where all three children are present – for one hour at the time of each child’s birthday, one hour around Christmas and one hour around Easter. Further, there are no access arrangements for the children to meet their older siblings. The access of five hours per annum was described as “minimal in the extreme”.

In the High Court in July 2015, Mr Justice Noonan refused leave to judicially review the Circuit Court orders as FG did not have a stateable case and the application was out of time. FG, who was representing herself, submitted that she had been incorrectly advised by her lawyers regarding the time limit.

In January 2016, a letter the CFA refused to increase access due to the wishes of the children.

At the second application for leave to seek judicial review, Mr Justice Humphreys was satisfied that FG had been wrongly advised, therefore there was good and sufficient reason to extend time and that the failure to make the application within time was due to circumstances outside the control of, and could not reasonably have been anticipated by FG – as such the requirements of Order 84, Rule 21(3) of the Rules of the Superior Courts had been made out. Mr Justice Humphreys therefore made an order extending time for the bringing of the application.

In his judgment delivered in March 2016, Mr Justice Humphreys granted leave to challenge the Circuit Court orders. Mr Justice Humphreys also said that the January 2016 letter from the CFA which refused to increase access was amenable to judicial review. Mr Justice Humphreys granted leave to seek a mandatory order, addressed to the Circuit Court and/or the CFA, to reconsider access

The substantive hearing was before Mr Justice Heneghan on 7th October 2016, and in an ex tempore judgment delivered 17th October 2017 Mr Justice Heneghan said that no decision was pronounced in the letter which would render it liable to judicial review. Mr Justice Heneghan said that the 1991 Act vested in the CFA the discretion to organise access, that any review of the appropriateness of access should be addressed in the District Court pursuant to the Child Care Act 1991.

Mr Justice Heneghan also said that Mr Justice Noonan had refused leave based on the merits, and that the secondary basis was that the application was outside of the time limit. In the circumstances, Mr Justice Heneghan said that the Court did not have a discretion to act as a court of appeal from the order of Mr Justice Noonan, that the matter was res judicata, and that Mr Justice Noonan’s decision was final in that regard.

Finally, Mr Justice Heneghan said that the Child Care Act 1991 affords “two readily available remedies” and that FG had chosen not to avail of either of them. Stating that judicial review was a discretionary remedy which was not appropriate in the circumstances, Mr Justice Heneghan refused the reliefs sought.

The Supreme Court

FG was granted leave to appeal the decision of Mr Justice Heneghan directly to the Supreme Court on the following three issues:

Issue One: Whether Mr Justice Humphreys was entitled to grant an extension of time and leave to seek judicial review, or whether the refusal by Mr Justice Noonan to grant leave to seek judicial review rendered the matters raised by the applicant res judicata;

Issue Two: Whether the January 2016 letter from the CFA contained a decision amenable to judicial review;

Issue Three: Whether the Supreme Court should remit the matter for full hearing on the substantive issues identified by Mr Justice Humphreys, identified as follows:

  • That FG had an arguable case that the Circuit Court orders and the manner in which the CFA was implementing access were unlawful; and
  • That in circumstances where the Circuit Court had left the access entirely at the discretion of the CFA, the decision as expressed in the January 2016 letter from the CFA was amenable to judicial review.

Delivering the judgment of the Supreme Court, Mr Justice McKechnie said that Mr Justice Humphreys was entitled to grant an extension of time, but said there was no basis to revisit the determination already made by Mr Justice Noonan on the merits of the leave application. As such, Mr Justice Heneghan was correct in holding that the attempt to renew the leave application on the same grounds, in the absence of a change in circumstances, was an abuse of process.

On the second issue, Mr Justice McKechnie said that nothing in the January 2016 letter constituted a decision made on behalf of the CFA, that it amounted to no more than a recital of present arrangements and the basis for them being in place.

Finally, Mr Justice McKechnie was satisfied that FG already had a substantive hearing before the High Court, and that she had not succeeded in challenging Mr Justice Heneghan’s judgment. As such there was “no basis to re-run the hearing on the substance of the judicial review application”.

  • by Seosamh Gráinséir for Irish Legal News

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Other judgments by Mr Justice Liam McKechnie