Court of Appeal: Mother loses appeal against interim care order made without hearing all evidence

About this case:

• Citation:
  [2018] IECA 385
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Agreeing with the High Court that there had been no breach of fair procedures in the District Court, Mr Justice George Birmingham, President of the Court of Appeal, said that in making the Interim Care Order for the shortest time possible, the District Court Judge was attempting to deal with the situation ‘in a manner that can fairly be said to have been above and beyond the call of duty’.

Background

LSM was born on 5th June 2018. LSM’s mother and next friend in the present proceedings, KM, is a 20-year-old woman and was in the care of the Child and Family Agency (Tusla) between the ages of 13-18. Some of that time was spent in secure care.

Before LSM was born, she was registered on the Child Protection Notification System, and TULSA arranged for KM to attend for residential assessment at a Parent and Infant Unit ‘so as to assess her capacity to adequately provide for and protect her child’. As such, between 11 June and 29 August 2018, LSM resided with KM in a Parent and Infant Unit.

TUSLA had “very serious and significant concerns” about KM’s mental health and welfare due to KM’s history of substance misuse, mental health issues, emotional and behavioural difficulties, risk-taking, physical aggression, self-harm and offending behaviour. Whilst at the unit, it was reported that KM had problems with other residents and had periods of absence away from the unit – culminating in KM having an ‘adverse reaction to negative feedback from staff’ on 28 August 2018, resulting in ‘staff forcing entrance into her room in order to confirm the safety of the child’. It is apparent that KM left the unit without her daughter but returned later that same evening.

The unit said that KM and LSM’s placement there was no longer viable, and in the circumstances, on 29 August 2018, LSM was initially taken into care on foot of an Emergency Care Order under s. 13(1) of the Child Care Act 1991. The Emergency Care Order was for 8 days, and on 5 September 2018, an Interim Care Order was granted by Judge Aingeal Ní Chondúin in the District Court.

District Court

In the District Court, evidence was heard from the manager of the Parent and Infant Unit, followed by a senior psychologist and Clinical Director at the unit – who was at the early stage of giving evidence when Judge Ní Chondúin indicated that she would take a five-minute break. When the Court sat again, the HSE’s solicitor indicated that he would ‘wrap it up fairly quickly’ and not call the social worker to give evidence.

Counsel for KM indicated that he didn’t think they would be going into evidence. Adjourning the matter, Judge Ní Chondúin commented that the hearing would merit another day, and that she would give the case the earliest possible date. and that she felt she had ‘no choice but to issue an Interim Care Order to the earliest possible date’.

Judge Ní Chondúin said that she was happy to jeopardise or scupper family law lists or any other lists because these were decisions to be made quickly, and that she wouldn’t do it otherwise.

At this stage, counsel for KM questioned the Court’s jurisdiction to issue an Interim Care Order in respect of proceedings that had not been concluded, stating that he was ‘not aware of any legal vehicle’ allowing for this cause of action.

In response, Judge Ní Chondúin said that there was ‘always a first time’, and that she was only concerned with the well-being of a child, not anybody else.

High Court

In the High Court, LSM and KM sought an order under Article 40.4 of the Constitution for release from the custody of TUSLA.

Firstly, KM submitted that there had been a fundamental denial of justice due to the late delivery of the materials being relied upon by the TULSA. It was submitted that this breached O. 84, r. 9 of the District Court Rules (as amended), and further, that there had been a fundamental denial of justice within the meaning of the doctrine established in S.McG v Child and Family Agency [2017] IESC 9 [2017] 1 IR 1.

Mr Justice Richard Humphreys held that the objection was legalistic in nature and was not of the kind envisaged in S.McG.

Second, KM submitted that there had been a breach of fair procedures or a want of jurisdiction as Judge Ní Chondúin issued an order without hearing all of the evidence. Mr Justice Humphreys found, in line with The State (Lynch) v Cooney [1982] IR 337, that a “practical and pragmatic” solution where time was of the essence which resulted in the modification of fair procedures was not a breach of the principle per se.

Stating that test was one of proportionality, Mr Justice Humphreys held that fair procedures were not breached in a case such as this where time necessitated a truncated process.

Court of Appeal

Considering KM’s appeal, Mr Justice Birmingham said that Judge Ní Chondúin found herself in a very difficult situation, and that ‘her response was a very conscientious and responsible one’.

Mr Justice Birmingham said that he had ‘no doubt that the fact that the timeframe set out in the District Court Rules was not adhered to would not of itself provide a basis for an order under Article 40 of Bunreacht na hÉireann’. He said ‘that the situation in relation to the Court running out of time’ was ‘more unusual and more difficult’.

In this regard, Mr Justice Birmingham said that the context of the case The State (Lynch) v. Cooney  was so different to the present case that he derived little assistance from this case which Mr Justice Humphreys placed considerable reliance.

Mr Justice Birmingham said that the present proceedings were ‘in sharp contrast’ to SMcG, and considering Bedford Borough Council v M & anor; A & ors v Child and Family Agency [2017] IEHC 583, Mr Justice Birmingham said that the current proceedings were ‘starkly different in that Judge Ní Chondúin was at pains to be fair, to maintain the status quo, and not disadvantage any party’.

Commenting that the factual background in the present case was quite different to those mentioned, Mr Justice Birmingham said that Judge Ní Chondúin made the order ‘because she felt that she had no real alternative’ and that she ‘was doing everything in her power to avoid injustice’.

Mr Justice Birmingham said that the situation was entirely unsatisfactory, and although ‘one would like to think that what occurred was highly unusual, perhaps bordering on the unique’, this was not the case – and it was disturbing that ‘something not very different occurred again’ later that month.

Stating that the difficulties that arose were not of Judge Ní Chondúin’s making, Mr Justice Birmingham said that Judge Ní Chondúin was attempting to deal with the situation ‘in a manner that can fairly be said to have been above and beyond the call of duty’.

Noting that the option of making a further Emergency Care Order was not canvassed with Judge Ní Chondúin by KM’s legal team or anybody else, Mr Justice Birmingham dismissed the appeal and said that the decision to make an Interim Care Order ‘to last for the shortest possible time’ was an ‘appropriate and responsible’ decision.

• by Seosamh Gráinséir for Irish Legal News