Supreme Court: Care orders made under the Child Care Act must be effected in a constitutionally compliant sequence

About this case:

• Judgment:
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The Child and Family Agency brought the appeal concerning the applicability and scope of the remedy of habeas corpus as it is delineated in Article 40 of the Constitution, particularly in its application to child care cases. The majority of the seven-judge Supreme Court, Justice Peter Charelton dissenting, found that Article 40 was appropriate in the exceptional circumstances of the case where there had been a denial of constitutional justice.

Background

On 29th October 2015, the District Court in Dublin made an interim care order under s. 17 of the Child Care Act 1991 (as amended), removing the children from mother and father, and placing them under the care of the Child and Family Agency. The mother and father had, at the time of the making of the care order, and continue to have, serious drug addiction problems.

In the District Court, an adjournment of a week was sought to allow the father to obtain legal representation and to allow the mother to properly instruct her solicitor who was not appointed until the morning of the hearing, however this was refused.

High Court

An application was made to the High Court under Article 40.4.2º of the Constitution to inquire into the lawfulness of the detention of the children. Justice Baker held that there had been a failure by the District Court to afford the mother and father an opportunity to “fully engage with the evidence.” As the interim care order application in the District Court concerned “the day-to-day relationship and care of the children by their mother, and the ongoing contact between the children and their mother, the frailty in making the order impact on its validity in a way that failed to engage the welfare of the children and their place in the family unit”, an order of release from custody under Article 40.4.2º was ordered by the High Court.

This final order was tempered by an agreement between the Child and Family Agency and the parents so that the parents did not then have their children returned to their care, and at the time of the hearing before the Supreme Court the children remained in foster care under the Child and Family Agency since both parents continue to struggle with drug addiction problems. The order of the High Court was not implemented straight away but, an opportunity was instead given to the Child and Family Agency to return to the District Court and obtain another order under the Child Care Act 1991.

Supreme Court

The Child and Family Agency directly appealed the High Court to the Supreme Court, regarding the application of any habeas corpus type remedy as anathema to child care matters. The appeal dealt with three issues:

Mootness

It was contended on behalf of the Child and Family Agency that the case was moot because the original order of the District Court made on the 29th of October had expired on the 26th of November 2015 – since the proceedings were not determined prior to that date, the application was moot.

Justice O’Donnell disagreed with this contention and stated if the order could continue to have an impact both practical and legal on the care hearings, then it could not be said that any proceedings to quash that hearing would be moot. Citing KA v. Health Service Executive IEHC 288, 1 I.R. 794, Justice MacMenamin also agreed that the application was not moot.

Article 40

Justice O’Donnell agreed with the judgment of Justice MacMenamin in that, even if the product of concern as to the safety of the children, and frustration with the difficulty in providing legal aid, the breach of fair procedures in the District Court was nevertheless “a fundamental departure from the requirements of a fair hearing”.

In holding that Article 40 was “appropriate, in these exceptional circumstances, where there has been a denial of constitutional justice”, Justice MacMenamin held that “a constitutional application of s.23 of the Child Care Act 1991 requires that the orders of the Court be effected in a constitutionally compliant sequence, vindicating, where so required, in the first instance, the right to liberty by an order for release, and second, if necessary, by an ancillary order under s.23 of the Act, protecting the welfare of children”.

Concurring with Justice MacMenamin in dismissing the Child and Family Agency’s appeal, Justice O’Donnell dismissed the appeal, stating that the case “should be treated as arising from the very specific history of the application of the writ of habeas corpus in the field of custody of young persons, and the present day application under Article 40 in the context of a Constitution which guarantees the rights of children”.