High Court: Interim care order made without hearing all evidence did not constitute denial of justice

About this case:

• Citation:
  [2018] IEHC 500
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Richard Humphreys

The interim care order was granted in circumstances where the District Court judge had not heard all evidence due to time constraints. Dismissing the application, Mr Justice Richard Humphreys said that there had not been a fundamental denial of justice and that a curtailed or modified form of fair procedures was not in itself a breach of the principle. 

Background

The applicant, 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. The concerns of the TUSLA in relation to the mother include substance misuse, mental health issues, emotional and behavioural difficulties, risk-taking, physical aggression, self-harm and offending behaviour. 

Between 11 June and 29 August 2018, LSM resided with KM in a mother and baby home.

On 29th August 2018, due to concerns on the part of TUSLA, an application was made to the District Court. and an emergency care order under s. 13(1) of the Child Care Act 1991 was granted for an eight-day period.

TUSLA then sought an interim care order.

While under O. 84 r. 9 of the District Court Rules the application was required to be made two days in advance, TUSLA’s reports were not furnished to LSM and KM’s lawyers until 4th September 2018.

On 5th September 2018, TUSLA’s application came before Judge Aingeal Ní Chondúin. Time did not permit all evidence to be heard, and Judge Ní Chondúin said that she would resume on the “earliest possible date”.

Counsel for LSM and KM suggested that LSM should be left with the maternal grandparents, however Judge Ní Chondúin replied “I have concerns, but I have only heard one part of the story and I feel I have no choice but to issue an interim care order to the earliest possible date”.

Counsel for LSM and KM then submitted that such an order was outside the court’s jurisdiction because the proceedings had not been concluded, stating “I am not aware of any legal vehicle that allows for such a cause of action”.

Judge Ní Chondúin then replied: “Well, if there isn’t, there is always a first time. This is about a child. I‘m not concerned about anybody else. The wellbeing of a child … I am going to grant the order and if you feel I have exceeded my jurisdiction, you know where the High Court is. Monday 17th September”. 

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.

The first complaint was 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.

It was submitted that the failure to furnish all reports two clear days in advance was a breach of the District Court Rules and was in breach of LSM and KM’s right to fair procedures in terms of dealing with the application.

Mr Justice Humphreys said that one factor in that regard was the fact that counsel’s response to this problem was an application was to dismiss the proceedings, rather than seeking an adjournment to deal with the material. As such, the point that LSM and KM were ‘so severely handicapped in defending the proceedings that that amounted to a fundamental denial of justice’ was not made to the District Court.

In those circumstances in particular, Mr Justice Humphreys said that ‘the objection was something of a legalistic one and did not meet the fairly high benchmark of a fundamental denial of justice as set out in S.McG.’

In alleging breach of fair procedures or want of jurisdiction due to issuing an order without hearing all evidence, it was submitted that the District Court made an order without having completed a hearing of all of the evidence and that this was a fundamental breach of fair procedures and deprived the court of jurisdiction.

Mr Justice Humphreys said that The State (Lynch) v Cooney [1982] IR 337 [1983] ILRM 89 was the ‘pivotal authority’ in this context, in which it was held that where there was “no opportunity for debate or parley” the requirements of fair procedures did not impose an obligation to hear from a party interested in the decision.

From that decision Mr Justice Humphreys stated that ‘a broader principle can be established’ -  i.e. where the full operation of conventional fair procedures is impractical (e.g. due to running out of time), ‘a practical and pragmatic solution whereby a curtailed or modified form of fair procedures is applied is not in itself a breach of the principle’.

Mr Justice Humphreys added that to hold otherwise and ‘require the gold standard of fair procedures to be applied even if time was not available to do so would be to confer a windfall benefit on applicants, whether they were meritorious or not. a ‘windfall benefit’ would be conferred on applicants whether they were meritorious or not’.

Stating that the ‘ultimate test of constitutions and laws is that things must be made to work’, Mr Justice Humphreys said that Judge Ní Chondúin’s order that lasted only a period of 12 days was “pragmatic” and “wise”.

While opining that the order could not be regarded as entirely innovative, Mr Justice Humphreys was satisfied that the judge was valid in pointing out that there is a first time for everything – and that ‘misunderstandings of the doctrine of precedent seem to lead some people to an erroneous conclusion that many things may be done but nothing may be done for the first time’.

Adding that ‘[f]aced with the choice of innovation or injustice, a court can ill afford to spurn reasonable consideration for legitimately creative solutions’ Mr Justice Humphreys said that the order was one that the Court was ‘entitled to make if time runs out because under those circumstances the right to fair procedures is not breached by a truncated process’.

Dismissing the application, Mr Justice Humphreys said that the outcome was a matter for Judge Ní Chondúin at the resumed hearing.

• by Seosamh Gráinséir for Irish Legal News