Supreme Court allows Article 40 inquiry to quash flawed custody order, permitting fresh proceedings with full legal representation.

SUPREME COURT

Supreme Court No: 16/15

Denham C.J.

O’Donnell J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

O’Malley J.

BETWEEN

Child and Family Agency

Appellant

AND

SMcG (called Joan herein) and JC (called Tomás herein)

Respondents

Judgment of O’Donnell J. delivered the 23rd of February 2017

1 I hesitate to add a further judgment on this issue in respect of which I am in broad agreement with the approach of MacMenamin

and Charleton JJ. An Article 40 inquiry should rarely be used in disputes as to the care and custody of children. In relation to the

single issue upon which they differ, I agree with MacMenamin J. that the breach of fair procedures in the District Court hearing on the

29th of October 2015, even if the product of concern as to the safety of the children, and frustration with the difficulty in providing

legal aid, was nevertheless a fundamental departure from the requirements of a fair hearing. I also agree that what is and was

required from the court system in this case, whether by agreement at District Court level, or by an appropriate order at the level of

the Superior Courts, was that the clock should be reset to zero and proceedings should recommence in circumstances where both

parents here were fully and properly represented, and did not in any way suffer from the fact that there had been a determination

made on the application on the 29th of October 2015.

2 It is also apparent that the outcome of this appeal has not been to produce a single bright-line rule sought by the appellant. Given

the fact therefore that there is no clear-cut legal determination of this appeal, and that there is much good sense in the sensible and

sensitive way in which this case was resolved firstly by the learned High Court judge, thereafter by the parties in entering into

negotiation, and subsequently under the supervision of the President of the District Court, it might be thought that there is little to be

gained from further observations on the legal aspects of this case. However, applications for inquiries pursuant to Article 40.4 of the

Constitution are inevitably carried out under great pressures of time, speed, and in a case such as this, emotion. Here a practical

solution was arrived at. It is necessary to consider however what the correct course of action would be in a case where agreement

and common sense are in shorter supply than they were here. Furthermore, since s.23 of the Childcare Act 1991 has assumed a

greater importance in this appeal that it did in the proceedings in the High Court, and in any event is a novel and unusual provision, it

is necessary to consider the context in which it might apply.

3 One important feature of this case only emerged when it was contended on behalf of the respondents 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. The

application herein was commenced on the 6th of November, heard over three days on the 10th, 11th and 12th of November, and the

judgment of the High Court delivered on the 17th of November 2015. The order made that day and perfected the following day

directed that the children “be released forthwith from such detention”. However, we have been informed that the parties immediately

discussed the possibility of a staggered release from the custody of the Child and Family Agency (“CFA”) and on the 27th of

November 2015, the High Court formally made an order amending the original order in respect of costs, and also in respect of release,

as follows:

“And the Court being of opinion and so adjudging that the said return to the said Order of the 6th of November 2015 is

insufficient to justify the detention of the said JMCG and JMCG as aforesaid doth Order that the said JMCG and JMCG be

released from such detention but return of care to the parents to be staggered in accordance with the agreement

reached by the parties up to 5.30pm on Tuesday the 24th of November 2015.”

4 As the reference to the 24th of November 2015 shows, the order of the 27th of November 2015 was an order formalising the

arrangement which had already been put in place. In fact, new applications for interim care orders were issued by the CFA on the

19th of November 2015 made returnable for the District Court on the 23rd of November 2015. On the 24th of November, there were

further negotiations and an agreement reached in respect of a period of voluntary care. The application for interim care orders was

adjourned to the 10th of December 2015. On the 17th of December 2015 after extensive evidence and cross-examination the

President of the District Court, granted interim care orders in respect of both children for a period of 28 days which have been

renewed. . It should also be said that the respondents cooperated extensively with the proceedings, and the second named

respondent has successfully completed a residential detoxification programme and is availing of after care support and seeking

suitable accommodation to enable him to care for his two children. To that extent the story of this case shows that overall the

system has functioned in respect of the children here. The application for an inquiry under Article 40, with which this Court is

concerned, is only a part of those proceedings. However, it is I think particularly noteworthy that although the High Court made an

order under Article 40.4, for release of the person whose detention or custody has not been justified, which is arguably the most

important and powerful order the High Court can make, the children in question have never been “released”. They remained in the

custody of the CFA and were still in that custody as of the hearing of this appeal. That was because, very responsibly, no party to

the proceedings or the Court considered that the simple order under Article 40.4 was appropriate in the case. Indeed, on this appeal,

much attention has been directed to the possible use of s.23 of the Childcare Act 1991 as providing a route by which the

constitutional requirement of a fair hearing at which parties were adequately represented is maintained, without the consequence

that the children would be immediately removed from the care of the CFA and returned to the custody of the parents. The issue here

is one which may have ramifications for the remedy under Article 40.4 more generally, and deserves therefore some further attention.

5 I agree with the observations of the late Mr. Justice Hardiman in N v. HSE [2006] 4 I.R. 374 at p.534, that an Article 40 inquiry was

“one of the great bulwarks of personal liberty and of a free society”. Part of its strength is its clarity and simplicity: only one issue is

to be determined, the liberty of the individual, and normally at least, the options for the High Court hearing such an inquiry are

similarly limited: the High Court can make an order for release or refuse to do so. In N v. HSE the Supreme Court considered that it

was possible to make a staggered order for release because of the interests, and indeed constitutional rights, of the child concerned.

However, even in such a case, the object of the order is still the release of the child, and the restoration of the custody in that case

of the natural parents. Here the children remained in the custody of the CFA, and were never restored to the custody of their

parents. Accordingly, it is appropriate to look closely at the method by which the remedy was applied in this case.

6 I agree with Dr Kevin Costello when he observes at page 116 of his admirable text, The Law of Habeas Corpus in Ireland (Dublin:

Four Courts Press, 2006) that:

“Article 40.4.2 appears, on a number of grounds, unsuited for acting as a mechanism for the adjudication of child custody

disputes. Article 40.4.2 is concerned with detention which is not in accordance with the law. Applications for the transfer

of guardianship, on the other hand, do not usually challenge the legality of the current guardian’s custody, but the

suitability of that custody.”

Nevertheless, as the author points out, there is sufficient authority to demonstrate that as a matter of history that Article 40.4 and

its common law predecessor, the prerogative writ of habeas corpus, have operated in the field of child custody. But the law has

always operated slightly differently in that field. In the first case, the issue here is not the liberty of the children so much as who

should have custody of them. The applicant here was a mother asserting custody on her own behalf, and not the rights of the person

detained as would normally be the case, and indeed required, on an application under Article 40. Perhaps for the reason that the

rights of a third party and moreover the rights of a child are involved, and those interests may not be perfectly aligned with the

interests of the person claiming custody, the law has operated rather differently than in classic habeas corpus procedure. For

example, in the case of R v. Howes (1860) 3 E&E 332, Cockburn C.J., applied the principle that where a young person had left the

custody of their parents or legal guardian, the court would not enforce the return of the young person if it was plain that they had

reached the age of discretion, could make decisions for themselves, and had decided to leave the custody of their parent or guardian.

As is observed in Costello op.cit., the traditional remedy of habeas corpus in this field was always exercised with what Gavan Duffy P.

described In re Kindersley [1944] I.R. 111 at pp.119-120, as “a delicate discretion in the best interests of young children”.

7 I would however be slow to accept the proposition canvassed in this case that there remains in existence the possibility of invoking

the prerogative writ of habeas corpus on more flexible terms in matters concerning children and which co-exists in some way with a

stricter remedy under Article 40.4.2. I would prefer to see Article 40.4 as the entrenchment in constitutional terms of the prior

common law remedy. However, the history of that common law remedy in the field of children’s affairs is in my view relevant to the

manner in which Article 40.4 should be applied, not least because of the recognition of the constitutional rights of children. In a sense

this is what this Court recognised in N v. HSE. In cases concerning children, particularly since the coming into force of Article 42A, it

should be possible to say that the inquiry under Article 40.4 is also exercised with particular delicacy, and the formidable remedy

granted only where it is not merely appropriate but demanded.

8 The remedy of an inquiry under Article 40 is the great constitutional remedy of the right to liberty. It carries with it its history in the

common law as the vindication of the rule of law against arbitrary exercises of power. It is and remains the classic remedy when a

person’s liberty is detained without any legal justification, or where the justification offered, is plainly lacking. However the right it

protects is a right not to be deprived of liberty save in accordance with law. More difficult issues arise when it is sought to justify

detention by the production of a valid order which is regular on its face, but which it is asserted is liable to be quashed because of

some defect in procedure. The High Court on an Article 40.4 inquiry does not have jurisdiction to make any order other than release or

to refuse release. It cannot for example quash an order or direct the performance of a legal duty. Given the importance of the

remedy, and its power, I do not doubt that it is possible in a fundamental case, for the High Court to as it were, “look through” an

otherwise validly issued order, or at least an order which has not yet been quashed by a court with jurisdiction to do so, and direct

the release of the applicant. The Constitution itself recognises perhaps the most dramatic example of this where it specifically

provides for the possibility of Article 40 being invoked in circumstances where it is contended that a person is being detained in

accordance with law, but “that such law is invalid having regard to the provisions of this Constitution”. However, the High Court is not

itself given power under Article 40 to declare the law invalid even though it is for these purposes “satisfied” that it is invalid. Instead

it is to refer the question of validity of law to the Supreme Court, and refrain from making an order under Article 40, until such time as

the Supreme Court has determined the question so referred.

9 When habeas corpus was established as the essential bulwark of personal liberty, the grounds for asserting the invalidity of an order

whether of detention or otherwise, were limited and rarely invoked. Similarly there was no provision for a right of appeal against

conviction in criminal cases, something itself a relative novelty in 1937 when the Constitution was adopted. The writ of habeas corpus

was an important method of ensuring legality of detention, in the absence any other mechanism being provided by law.

The manner in which the constitutional remedy has been applied has taken account of these changes in the legal landscape. Thus, in

State (Royle) v. Kelly [1974] I.R. 259 Henchy J. stated at p.269:

“ The mandatory provision in Article 40 section 4, subsection 2, of the Constitution that the High Court must release a

person complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a

version of the rule of habeas corpus which is to be found in many Constitutions. The expression “in accordance with the

law” in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The

purpose of this test is to ensure that the detainee must be released if – but only if – the detention is wanting in the

fundamental legal attributes which under the Constitution should attach to the detention”

In Ryan v. Governor of Midland Prison [2014] I.E.S.C. 54 Denham C.J. quoted this passage and continued at para. 18:

“Thus the general principle of law is that if an order of a court does not show an invalidity on its face, and in particular if

it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of

habeas corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial

review. In such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a

fundamental denial of justice, or a fundamental flaw.”

10 The grounds for challenging the validity of orders made has expanded exponentially since the remarks in State (Royle) v. Kelly were

made. But in most cases Article 40.4 cannot be invoked as an alternative speedier and sometimes more costly and disruptive route to

a conclusion which may require the careful analysis by way of judicial review of the validity of an order. For my part I accept the

observations of Henchy J. in State (Ahearne) v. Cotter [1982] I.R. 188, that the High Court hearing an application under Article 40.4

does not have jurisdiction to quash orders of inferior courts or administrative bodies. That goes back to the fundamental nature of the

remedy: its strength lies in part in its limitation. However, the Court in an exceptional case has the capacity to direct the release of

the applicant notwithstanding the existence of the order, in the same way in which an exceptional case, post-conviction, it may

proceed to direct the release of an individual notwithstanding the existence of an order convicting him or her which has not been set

aside on appeal in the circumstances considered by Henchy J. Any such case however is exceptional and the breach must be so

fundamental that the obligation of the administration of justice and the upholding of constitutional rights requires the court to

proceed in that fashion.

11 The difference of opinion between my colleagues is perhaps one illustration of the fact that it is open to doubt whether an inquiry

under Article 40.4 is appropriate here. For my part I accept that the breach of fair procedures here was fundamental and moreover

clear-cut. A hearing inter partes which proceeds in circumstances where parties are either unrepresented notwithstanding the fact

that legal aid has been granted, or whether legal representative have had effectively no opportunity of preparing for case and taking

instructions on the detail, falls far short of what the Constitution requires for all the reasons explained so vividly by Henchy J. in State

(Healy) v. Donoghue [1976] I.R. 325. There are a number of practical alternatives which the legal system provides on a daily basis.

The case could be adjourned for a short period, or if it is considered that the matter is urgent, a court can sometimes proceed on an

ex parte and contingent basis, even when the other side is represented and giving the right to have a full inter partes hearing within

a short time. It is frustrating that three days of an urgent hearing in the High Court were required to get part of the way to that

point.

12 However the claim here could have been brought by way of judicial review. Indeed, it might be said that an order by way of

judicial review quashing the order of the District Court made on the 29th of October 2015, was necessary, to remove that hearing

from the proceedings and allow a fresh hearing to proceed. Indeed, the High Court could not proceed to make an order of release

under Article 40.4 without at least concluding as an initial step that the hearing on the 29th of October 2015, was not in accordance

with fair procedures, and consequently that the order made was invalid. I accept that it is not sufficient that there was the possibility

of a further hearing on the 26th of November 2015. As was set out in the grounding affidavit, in ongoing interim care proceedings it

would not be open to the parties to seek to re-litigate matters that had already been dealt with in previous hearings, and in those

circumstances the possibility of a fully contested application for an extension of the interim care orders would not cure the

jurisdictional procedural defects in the hearing on the first interim care order. The solicitor also observed that his experience of interim

care proceedings was such that he had “every reason to anticipate that this had started a series of events which will lead to the

children remaining in the custody of the Child and Family Agency for months, if not years, before there is a final determination of the

issue of whether the children should remain in the custody of the Child and Family Agency in a long term basis”. I accept therefore,

that this meant that the order of the 29th of October 2015 had to be addressed, set aside, and the proceedings placed on a sound

footing. However judicial review whether by way of certiorari or declaration is the obviously appropriate method of doing so. Article

40.4 is ill-adapted for that purpose, since it does not remove the order or proceedings from the landscape ,and furthermore comes

with the necessary consequence of an order for release, which is not necessarily wanted or, if sought, desirable . However, the

solicitor contended that if there was to be a proceeding by way of judicial review which was not determined prior to the 26th of

November 2015, then he would anticipate that he would “meet in argument that my application was moot”. It does not appear to me

that these two propositions can stand together. If indeed the order of the 29th of October 2015 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.

However, that is perhaps more easily said in hindsight.

13 In the judgment which he delivers, Mr. Justice MacMenamin considers that the breach of fair procedures here was of that

fundamental variety which meant that the procedure under Article 40.4 was properly invoked. However, he considers that s.23 of the

Childcare Act 1991 could have been applied so that the High Court could have immediately made an order for the interim care of the

children pending a fresh application in the District Court. I do not disagree with this as the broad outcome of the case: the order of

the 29th of October 2015 should be treated as of no effect, and the children should not be returned to their parents but should

remain in the care of the CFA pending an application for a new interim care order. Indeed, in practical terms this is what occurred by

voluntary agreement without the necessity of considering the jurisdiction under s.23. That is in my view the correct outcome of this

case and I do not dissent from it, but I would have suggested a slightly different route.

14 It was suggested that some doubts have been expressed as to the constitutionality of s.23 of the Childcare Act, at least if applied

in the context of Article 40 proceedings to prevent the making of an order of release, and for that reason it had rarely been invoked.

Dr. Costello appears to consider that s.23 is simply not available in Article 40.4 proceedings presumably because the statute is limited

to circumstances where the court finds or declares that a care order is invalid and is thus limited to judicial review. These matters

were touched upon but not debated before us in detail and I refrain from expressing any concluded view. I would however consider

that if it is correct that s.23 is in truth only available in judicial review, that that in itself a reason for not invoking the jurisdiction

under Article 40.4 but rather treating the case as an application for judicial review. Where it is contended that someone is in unlawful

custody, and therefore an inquiry under Article 40.4 should be commenced, but where the contention depends on an assertion on the

invalidity of the order detaining the person on judicial review grounds, then in most if not all cases I consider that the greater

flexibility of remedy of judicial review, of which s.23 is perhaps a specific statutory example make it more appropriate that the court

would proceed, expeditiously by way of judicial review so that the flexibility of the remedy, and in child care cases the specific

jurisdiction under s.23 would be clearly available to it. What was desired here was not in truth the release of the children or even the

reassertion of the custody of the parents which was the only thing Article 40 could provide. Instead what was desired was the

setting aside of the order of the 29th of October 2015 so that the question of interim care could be properly debated. Article 40.4

procedures were initiated as simply the most expeditious way of achieving this objective. Indeed, when the question of the removal of

the children from the custody of the CFA arose (which was the necessary consequence of the order of the High Court under Article

40.4), it was not pursued.

15 This might appear a distinction without a difference. If it is possible to obtain judicial review expeditiously then the same end point

is arrived at without perhaps much saving of time effort or cost. However the difficulty posed by this case, and the good sense of the

solution which was arrived at might obscure the impact of the decision is applied more generally. If the High Court is to be held to

have jurisdiction on an inquiry under Article 40.4 to quash or declare invalid routinely the orders of other courts or tribunals (in this

case triggering the beneficial jurisdiction under s.23) and at the same time can make an order for release which is so staggered that it

does not result in release but instead permits the curing of the defect without any change in custody or liberty, then the remedy

under Article 40 would be quite distorted. Its field of application might be considerably widened, but the strength of the remedy

diluted. Accordingly I do not consider that the route adopted here could necessarily be replicated in other fields. In my view the

essential clarity of the remedy requires that it be applied only in those cases where there is a fundamental defect which can and must

be remedied by an order for release forthwith. This 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. On that basis, I concur with the order proposed in the judgment of Mr.

Justice MacMenamin.