The Supreme Court has agreed to hear a mother’s appeal concerning the discretion of Tusla, the Child and Family Agency, to decide the extent of her access to her three young children, who are subject to long-term care orders.
In a published determination, three Supreme Court judges held the constitutional interests at stake and the interests of justice met the necessary legal threshold for an appeal to the Supreme Court.
The District Court granted long-term care orders in 2014 for the three children and ordered the agency to decide on the mother’s access.
The agency permitted her supervised access to the children for brief periods on Christmas Day, at Easter and on each child’s birthday.
After the Circuit Court dismissed her appeal over those orders, the woman, then representing herself, sought leave for judicial review by the High Court.
Outside time limit
However, Mr Justice Seamus Noonan refused leave because her application was outside the legal time limit. She did not seek to have the time extended.
On January 20th, 2016, after failing to get more access, she again sought leave for judicial review.
Mr Justice Richard Humphreys accepted that lawyers who had previously acted for her gave her incorrect information about the time limits for judicial review and said he would hear her leave application on notice to the agency.
He adjourned the matter to allow her meet Tusla to seek more access. In a letter dated February 27th, 2016, the agency refused more access because of the wishes of the children, then all aged under 11 years.
When the matter returned before Mr Justice Humphreys, the agency was represented by counsel who said he was there out of courtesy and had insufficient time to get instructions from the relevant social worker.
The judge granted the woman an extension of time to seek judicial review and also granted leave for a judicial review of the care orders and the February 2016 letter refusing increased access.
He considered the woman had an arguable case that the Circuit Court orders concerning access, and the manner in which the agency was implementing access, were unlawful.
Discretion of agency
As the Circuit Court left access entirely to the discretion of the agency, the refusal of increased access in the agency’s February 2016 letter could be judicially reviewed, he said. He also considered Mr Justice Noonan’s earlier refusal of leave did not prevent him making a different order.
After the agency appealed aspects of his order giving the woman an extension of time, the Court of Appeal ruled all such issues could be addressed at the full judicial review.
That was then heard by Ms Justice Margaret Heneghan who, in October 2016, dismissed the mother’s case for reasons including the mother had not used provisions of the Childcare Act permitting the District Court to review access.
She agreed with the agency that its letter refusing to extend the access arrangement could not be judicially reviewed and Mr Justice Noonan’s earlier refusal of leave was final.
The woman appealed and the Supreme Court has granted her a “leapfrog” appeal directly to it rather than the Court of Appeal.
The Supreme Court will decide whether the woman was entitled to an extension of time to seek leave for judicial review, and if she was entitled to leave.
It will also decide whether the agency’s letter of February 2016 refusing extended access may be judicially reviewed and whether there should be a full hearing on the substantive issues, including whether the manner in which the agency was implementing access was lawful.
