Judgment reserved in case of children taken into interim care

A seven-judge Supreme Court has reserved judgment on an important appeal by the Child and Family Agency concerning the legal options available to parents whose children are made subject of interim care orders.

The CFA argues that parents whose children are made subject of interim care orders at the District Court under the Child Care Act 1991 can never bring High Court proceedings under Article 40 of the Constitution for release of the children on grounds of "unlawful detention".

The case arose after two children, a teenage boy and five-year-old girl, were put in interim care by the District Court in October last year. The children were living with their mother while their father had access rights.

The parents took Article 40 proceedings and the High Court ordered a phased release of the children after finding the District Court should have adjourned the CFA application for reasons including the mother only got legal aid on the morning of the hearing, her solicitor had no opportunity to read social work reports and the father, described as functionally illiterate, had no legal representation.

The CFA had agreed to an adjournment but the District Judge refused that and proceeded to hear the case.

Respective rights

In her High Court decision, Ms

Justice Marie Baker

said, because the CFA application was aimed at taking the children from the daily custody of their mother, the requirements of fair procedures were particularly onerous and both parents were entitled to an opportunity to fully vindicate their respective rights to custody and access.

The judge also held the remedies of judicial review and Article 40 may not always be mutually exclusive and rejected arguments by the CFA that Article 40 was not available in such cases.

In this case, it was alleged there was a breach of constitutional rights and the Article 40 remedy was sufficiently flexible to meet the constitutional requirements of considering the welfare and interests of the children and the rights of their mother in particular to their care and custody, she said.

She ruled the interim care orders were not lawfully made due to not affording an opportunity to the applicants to fully engage with the evidence, including issues concerning the welfare of the children and their place in a family unit.

She agreed there is an “inherent continuity” in the childcare process and a flaw at an early stage can have a detrimental effect on the process as a whole.

‘Leapfrog’

The Supreme Court granted the CFA a “leapfrog”, or direct appeal to that court, rather than to the Court of Appeal, against the High Court judgment after determining the case raised important issues including whether Article 40 proceedings can be pursued in such cases.

The Supreme Court also noted interim care orders may be appealed to the Circuit Court and an appeal may be heard quickly if the circumstances are sufficiently urgent.

In arguments on Wednesday, Feichín McDonagh SC, for the CFA, argued the Article 40 option is neither available nor appropriate in such cases under the 1991 Child Care Act and it made no sense to argue a child subject to interim care orders is unlawfully detained.

Teresa Blake SC, for the mother, said the October 2015 application was the first time it was sought to remove the children from their mother's care and she was entitled to bring the Article 40 application. When a court finds children are unlawfully detained, the court can decide how to deal with that invalidity and children have rights in such circumstances, counsel argued.

Mary O’Toole SC, for the father, said a child made subject to an interim care order cannot go home and that amounts to detention.