IESC 9 · Supreme Court

THE SUPREME COURT

Denham C.J.

O’Donnell J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

O’Malley J.

[Appeal No. 094/2015]

BETWEEN:

CHILD & FAMILY AGENCY

APPELLANT

V. S. MacG (Called Joan herein) AND J.C. (Called Thomas herein)

Judgment of Mr. Justice John MacMenamin dated the 23rd day of February, 2017

Introduction

1. The issue which arises in this appeal is whether, in the circumstances outlined herein, the High Court judge was correct in granting

an order pursuant to Article 40.4.2 of the Constitution, directing the release of the applicants’ two children (“the children”) (See In re

JMcG: SMcG v. The CFA [2015] IEHC 733, Baker J., 17 November 2015). The question falls to be decided in the broader context of the

circumstances in which an Article 40 enquiry is appropriate, generally, in child care and child custody proceedings. It must be said at

the very outset that the application arose in exceptional circumstances. The full and detailed judgment delivered by my colleague,

Charleton J., outlines the nature of the relevant statutory provisions in question in this appeal. Unfortunately, I take a different view

as to the disposition of the case.

2. By order of the District Court, made under s.17 of the Childcare Act, 1991, (“the Act”), the children, a boy aged 14 years, and a

girl aged 5 years, were placed in the care of the appellant (“the CFA”). Previously, the children had been in the mother’s custody and

care. In the years previously, the relationship between the parents had been an intermittent and unhappy one. Both parents have

serious and ongoing drug addiction problems. One social work report described the children’s circumstances in the months before the

application to the District Court, as having been “chaotic”. Encounters between the parents were often aggressive, and sometimes

violent. The children were witnesses to these events. The children, and their mother, had lived in a number of different locations, but

had no settled home. They were exposed to the reality of their parents’ drug-taking and excessive drinking. While the two orders

made by the District Court, under s.17 of the Act, were to have a duration of 29 days, they are now spent. However, for reasons

outlined later in this judgment, I do not consider that the issues are moot.

The District Court Hearing

3. Childcare cases frequently present difficult choices for judges, where timing can be critical. This application to place the children in

interim care was listed for hearing before the District Court on the 29th October, 2015. The mother obtained legal aid on an

emergency basis. However, she did not have an opportunity to meet the solicitor assigned to her until the day of the hearing, and her

solicitor did not receive much of the paperwork until 10 a.m. on the same day, the case being listed for 10.30 a.m.

4. The father was in a different and rather worse situation. He is functionally illiterate. He had not obtained legal aid. Accordingly,

when the case was called over, he sought an adjournment. Both the mother’s solicitor, and the solicitor representing the CFA, had

discussed the case beforehand. Both lawyers agreed it was appropriate that the matter be adjourned for one week in the

circumstances. It would appear that both the lawyers took the view that, although the situation of the children required the

intervention of the court, the matter was not considered critical at that point.

5. At the call-over, therefore, the mother’s solicitor sought to explain the difficulties to the District judge. He indicated that his brief

conversation with the father led him to the view that he, too, required legal representation, and that his degree of illiteracy was such

that it did not seem likely that he could properly represent himself. The father himself supported this application for adjournment. He

informed the District judge that he had applied for legal aid some days previously, and had been assured that the application would be

treated as one of priority. He told the judge about his literacy problem, and the fact that he had other significant physical ailments.

6. However, doubtless from concerns regarding the position of the children, the District judge was not disposed to grant the

application for adjournment. She had read the papers in the case. She indicated that the hearing should proceed on the day.

Although the case was called on at 10.30 a.m., the court had other business, and the hearing commenced one hour later. Even by

then, the solicitor acting for the mother had not had time to complete reading the social worker’s report, or to take full instructions.

This is understandable. The social work report is very detailed, and typed in small print. The difficulties which faced the father in his

circumstances are obvious. The report contained a high degree of detail regarding neglect in relation to the children’s care. It detailed

the social workers’ engagement with the family, since the first referral to the Department of Social Protection in June, 2013. The

report recommended that the children be placed in care. It identified specific events occurring on identified dates, when matters of

concern were said to have come to the attention of social workers. By then the engagement with the social services had gone on for

a number of years.

7. Further difficulties arose. A relevant medical report only became available later on in the morning. The hearing nonetheless

proceeded. Ultimately, and at the end of a four-hour hearing, the District judge made an interim order transferring custody of the

children to the CFA, for a period of 29 days. (See also Childcare Amendment Act, 2013, s.1, which permits an order of such duration).

The order also provided for access to be arranged in accordance with s.37 (1) of the Act.

8. The length of the hearing indicates that this was not by any means a routine application. Undoubtedly the judge was properly

concerned as to the children’s welfare. But, not only were the interests and constitutional rights of the children engaged, so, too,

were the interests and constitutional rights of the parents. Can it be said the parents’ right to fair procedure and effective legal

representation had been vindicated? This was the question which fell for determination in the High Court.

Application for an Inquiry

9. On the 6th November, 2015, counsel on behalf of the mother brought an application to the High Court seeking an inquiry into the

detention of the children, pursuant to Article 40.4.2 of the Constitution. Although the father was joined as a notice party to the

application, senior counsel applied for him to be joined as a co-applicant, which application was granted. Both parents were

represented therefore. By then, in response to the application for an inquiry, the CFA had filed in court a certificate from a social

worker showing cause. The matter came on for hearing before Baker J. on the 10th, 11th and 12th November, 2015.

10. One of the main issues which now arise in this appeal in fact became clear early on in the High Court hearing. At the outset,

counsel on behalf of the CFA raised a preliminary objection. He contended that the Article 40 procedure was inappropriate in childcare

matters, and that the applicants were not entitled to assert breaches of their constitutional rights to fair procedure in such

circumstances. He submitted that an Article 40 inquiry could only be grounded on breaches of the rights of persons who were alleged

to have been placed in unlawful detention. For this reason, he submitted the parents were not entitled to bring an Article 40 inquiry

concerning an alleged breach of their own rights, when it was the children who were the subject of the impugned order. Counsel

submitted that, in the event that an inquiry was permitted, a court could find itself faced with a conflict between the interests and

rights of the parents, on the one hand, and those of the children, on the other hand. This, along with other submissions raised in the

High Court, will be considered later.

The High Court Judgment

11. In a careful and well-reasoned judgment, the High Court judge held that what had transpired in the District Court constituted a

breach of the parents’ constitutional rights to fair procedures. (Para. 34 of the judgment). She pointed out that the CFA clearly had

not considered the children to be at immediate risk; this was apparent from the fact that the solicitor was prepared to consent to a

one week adjournment. Baker J. pointed out that the issue before the District Court was not a mere question of acceding to an

application for an adjournment, but rather one where the application was based on specific grounds. As set out earlier, these were

that neither applicant was in a position to proceed; in the mother’s case, because she had not had the opportunity fully to instruct

her solicitor and consider the social work and medical reports; in the case of the father because, in addition, he had no representation

at all, and because his illiteracy placed him at a significant disadvantage, such that he could not meaningfully engage with the court

process.

12. Granting the order under Article 40, the High Court judge held that the application for adjournment should not have been refused;

and that the parents’ rights to constitutional fair procedures had not been fully respected. She rejected the submission that the

parents, as applicants, could not rely on a failure to respect their own rights to fair procedures in order to establish that the

detention of the children was unlawful. She did not accept the argument that the rights of the parents might be placed in direct

conflict with the rights of the children, and that the court could only accede to an application under Article 40, if the rights of the

children had been shown to have been breached. The judge considered this argument conceptually flawed, as the Constitution

presumed that the welfare of children is primarily to be found within the family, or in the case of unmarried parents, in the custody of

the mother (See G v. An Bord Uchtala [1980] I.R. 32, 113 ILTR 25). The High Court held that the balance of rights engaged could only

be achieved by a full respect for the substantive procedural rights, both, of the children and the parents. The judge pointed out,

importantly, that no guardian ad litem had been appointed to represent the children’s rights and interests, and that the vindication of

the welfare rights of the children required affording fairness of procedure to the parents. Referring to the High Court judgment of KA v.

Health Service Executive [2012] IEHC 288, [2012] 1 I.R. 794, (O’Malley J.), Baker J. pointed out that there was a continuity in

childcare proceedings, and that a fundamental flaw at an early stage in such procedure could have a detrimental effect on the

process as a whole.

13. The judge noted that there was a long history in the jurisprudence of the courts permitting Article 40 inquiries relating to the

custody of children in certain circumstances. She referred to that line of authority, including In re Tilson, Infants [1951] I.R. 1, The

State (D & D) v. Groarke [1990] 1 I.R. 305, [1990] ILRM 10,130 and more recently, N v. The Health Service Executive [2006] IESC

60, [2006] 4 I.R. 374. The propriety of such an approach was more recently considered by this Court, both in N v. The Health Service

Executive (cited above), and also in the somewhat different context of an adult with a mental disability in FX v. Clinical Director of

the Central Mental Hospital [2014] IESC 1, [2014] 1 I.R. 280. Baker J. pointed out that the Supreme Court had not expressed any

concern regarding the utilisation of an Article 40 inquiry, in the circumstances of those cases.

14. At the conclusion of her judgment, the judge did not simply grant an order for the release of the children back into the care of the

mother. Instead, there were negotiations between the parties, and the matter came before the High Court again on the following

week, when an order was made providing for a phased return of the children. Subsequently, a renewed application was made in the

District Court, again pursuant to s.17 (1) of the 1991 Act, and the children were placed in the care of the CFA, where they now

remain.

15. The issues before this Court are set out in Charleton J.’s judgment. Apart from mootness, essentially four broad questions must

now be considered. The first is whether it is appropriate to invoke Article 40 at all in cases of this category? If it is appropriate, when,

and in what circumstances? Finally, assuming that Article 40 is appropriate, is it lawful for a judge, when ordering a release, to direct

such release take place on a phased basis?

An Observation

16. Prior to a detailed consideration of the appellants’ submissions, it is necessary to point out that N v. HSE, and FX v. The Central

Mental Hospital, which are both judgments of this Court, bear in varying degrees directly on the points raised. The first of these

judgments, N v. HSE, makes no criticism of the utilisation of an Article 40 inquiry. This was an Article 40 inquiry regarding custody of

children. Both N v. HSE and FX v. The Central Mental Hospital, particularly the judgment of Denham C.J. in FX, consider the

constitutional duty of the court, where it concludes there is a necessity to allow for a phased approach to implementation of an

Article 40 order (see par. 76). Such an exceptional course will only arise rarely, and only with regard to the welfare interests of the

person concerned in the order. (See also the judgment of Murray C.J. in N v. HSE [2006] 4 I.R. 374 at 470). I mention these

comparatively recent decisions because, at times during the appeal, one had the impression that the appellants’ true case was, so to

speak, a sub silentio reversal of both judgments. Stare decisis and precedent form a vital part of our jurisprudence. It was never

submitted that either judgment was “clearly erroneous”. (See Mogul of Ireland v. Tipperary (N.R.) County Council [1976] I.R. 260).

No convincing submission was made that the principles established in either judgment might be distinguished from the instant appeal,

or that some intervening event, save perhaps the enactment of Article 42A of the Constitution on the 28th April, 2015, had altered

the law, so as to create a changed legal context. Both cases attracted a degree of attention. Yet, they were not directly addressed

in submissions by the appellant. Counsel did, however, base submissions on a reading of Article 42A of the Constitution. This now

provides that, in the resolution of all legal proceedings, the best interests of the child shall be the paramount consideration. This same

principle is, and was at the time of the judgment of this Court in N v. HSE, contained in statutory form in s.24 of the Act of 1991.

Consideration

17. Extensive reliance was placed upon the recent judgments of this Court in Ryan v. The Governor of Midlands Prison [2014] IESC 54

(Supreme Court, Judgment of the Court (ex tempore) delivered on the 22nd day of August, 2014, Denham C.J.), and Roche (also

known as Dumbrell) v. Governor of Cloverhill Prison [2014] IESC 53. (Supreme Court, Charleton J., delivered on the 31st day of July).

It is right to say that both judgments deprecate the use of the Article 40 procedure in circumstances other than when there is a

defect on the face of the order which goes to jurisdiction. But there is an exception to this rule, that is, where there has been some

fundamental “denial of justice”, (as Denham C.J. points out in Ryan [2014] IESC 14 at par 13). Charleton J.’s judgment in this Court in

Roche is to the same effect. I would hold that what occurred in the District Court was a fundamental denial of justice, and of the

constitutionally implied right to fair procedures. Fair procedures, especially in the circumstances, required that both parents be legally

represented, and time given to take instructions, and comply with other procedural steps necessary (see, too, McMichael v. U.K.

[1995] EHRR 205, at par. 87). The effective representation of parents is not only a vindication of their own rights, but of the

children’s rights.

18. Relying on the judgment of this Court in McDonagh v. Frawley [1978] I.R. 131, counsel for the appellant submitted that, if there

had been an error by the District Court, it was one within jurisdiction, and that, in effect, there was no challenge to the merits of the

order, or how the District Court had balanced the rights and interests of the children, but rather the focus had been on the rights of

the parents.

19. I would reject that submission also, for the same reason. The Court is not considering here a procedure and remedial flaw. The

facts of this case establish there was a fundamental breach of the right of fair procedures. In McDonagh, O’Higgins C.J. specifically

pointed out that an Article 40 procedure was appropriate in the event there was such a default in the fundamental requirements of

justice that the detention might be said to be “wanting in due process of law”. (p.136 of the Report). In my view, this was precisely

the situation here. This was decidedly not a situation where there had been a mere legal error, or slight procedural impropriety, or

where the jurisdiction of the court had been inadvertently exceeded. Had this been so, then applying Higgins C.J.’s dicta, different

considerations would arise.

20. Counsel made reference too, to dicta by Peart J. in W v. HSE [2014] IEHC 8, at paragraph 59, and Birmingham J. in Courier v. The

Health Service Executive (Unreported, High Court, 8th November, 2013), where both judges deprecated the utilisation of Article 40

procedures in childcare matters. (See also a judgment of Munby J. in the English High Court in S v. The London Borough of Haringey

[2003] EWHC 2734 (Admin)). The facts of both cases are very different from the instant case. Neither Irish case involves a

fundamental constitutional defect such as the absence of fair procedures. While I would share the reservations expressed in these

judgments as to the use of Article 40 procedure in childcare cases, these reservations do not arise when there has been such a denial

of fair procedures as to render the proceedings effectively a nullity.

21. Counsel further submitted that an Article 40 inquiry was ill-suited for the determination of childcare issues, bearing in mind that

they are, in their nature, an inquiry as to what is to be done in relation to the welfare of the child, or children, in the particular

circumstances pertaining. (See Southern Health Board v. CH [1996] 1 I.R. 219, per O’Flaherty J., pages 237 to 238), and the High

Court judgment of L (T) v. L (V) [1994] 11 JIC 1001, The High Court, Unreported, 10th November, 1994, per McGuinness J.). While

this is, generally, true, it does not abrogate the right of the parties to fair procedures, nor does it entitle an appellant to ignore what

was held by this Court in N v. HSE. One cannot simply set to one side the observations made, inter alia, by Hardiman J. in this

judgment (see the Report at [2006] 4 I.R. 374 at p.534 at par. 186). There the judge pointed out that an Article 40 inquiry was “one

of the great bulwarks of personal liberty and of a free society”, in which every citizen had an absolute and unqualified right to have

recourse to it on his own behalf and on behalf of another. As the judgment points out, most disputes regarding the custody of

children should be dealt with under the Guardianship of Infants Act. The fundamental issue in N v. HSE was that the child in question

was in the custody of the intended potential adopters who, this Court found, had no legal mandate to have custody of the child.

Clearly, this would come under the heading of a fundamental denial of the natural parents’ constitutional rights.

22. It was contended that the transfer of custody here did not constitute “detention”, (See MF v. Superintendent, Ballymun Garda

Station [1991] I.R. 189), and that the provisions of Article 40, seen in their entirety, do not sit easily with the utilisation of the

procedure in childcare cases. In this connection, counsel referred to Article 40.4.3 of the Constitution, which imposes a duty upon a

High Court judge conducting an inquiry, and who considers that a law is invalid having regard to the provisions of the Constitution, to

state a case to the Supreme Court and allow the applicant to be at liberty on such bail conditions as the High Court shall fix. This

again is at variance with the observations of this Court in N v. HSE.

23. In considering whether or not the circumstances involve deprivation of liberty, the starting point must be the concrete situation

of the individuals concerned. One must have regard to a range of criteria, including the type, duration, effects and manner of

implementation of the District Court order. The situation was, in fact, that the children were placed under the complete supervision

and control of the CFA. They would not have been free to leave the custody of the persons in whose care they were placed. Because

of the invalid hearing, the children were, therefore, in that sense, held ‘without legal mandate’, and having regard to what I would

hold was a denial of constitutional rights in the District Court, the children were, in the words of Article 40, not being “detained in

accordance with the law”, or put in another way, without any legal mandate.

24. I am conscious of the fact that in MF v. Superintendent, Ballymun Garda Station [1991] I.R. 189 this Court held that detention in

a place of safety under ss. 20 and 24 of the Childcare Act, 1908 was not a deprivation of liberty in the true sense, as explained in

that judgment. But the facts of MF are distinct from the instant case: here there is the critical antecedent question of deprivation of

fair procedures; in MF this Court held that the District judge making orders concerning the child lawfully had “full seisin” of the case.

This was not the position here. Moreover, N v. HSE now makes clear, Article 40 proceedings may, in certain circumstances, be

appropriate where a child is held or detained without “legal mandate”. To my mind, the circumstances of this case are not, therefore,

analogous to those in MF v. Superintendent, Ballymun Garda Station [1991] I.R. 189. By implication, the judgments in N v. HSE, must

be seen as placing a significant gloss on O’Flaherty J.’s observations regarding deprivation of liberty in MF. While the appellants’ case

here is that an Article 40 procedure is inappropriate, one might note that in MF the very authority it relies on in aid of its case was

itself an Article 40 inquiry into the detention of children.

25. This leads on to a further submission to the effect that, insofar as applications for custody of children had been made both before

and after the enactment of the Constitution of 1937, those post-1937 should be seen in the context of the continued existence of

habeas corpus procedure, as referred to by Walsh J. in the The State (Aherne) v. Cotter [1982] I.R. 188, at page 200 et.seq. There

is no such indication in the earlier authorities cited, or in a number of similar decisions of the High Court, that what was in question

was actually a habeas corpus application. (See, to the contrary, Kent County Council v. CS [1984] ILRM 292; Saunders & Others v.

Mid Western Health Board [1989] ILRM 229).

Section 23 of the 1991 Act

26. One of the issues in Aherne concerned what was held to be an unlawful inhibition on the right to appeal sought to be established

by a court rules making committee. Nonetheless, relying on dicta of Walsh J. in Aherne, counsel submitted that, by analogy to rights

of appeal, no legislation could be put in place which had the effect of abrogating the wording of Article 40 of the Constitution.

Doubtless, this submission was made because of the provisions of s.23 of the Childcare Act, 1991, which provides:

“23. Where a court finds or declares in any proceedings that a care order for whatever reason is invalid, that court

may of its own motion or on the application of any person refuse to exercise any power to order the delivery or return

of the child to a parent or any other person if the court is of opinion that such delivery or return would not be in the

best interests of the child and in any such case the court, of its own motion or on the application of any person, may -

(a) make a care order as if it were a court to which an application had been made by a health board under section

18,

(b) make an order remitting the matter to a justice of the District Court …; and where the matter has been so

remitted the health board shall be deemed to have made an application under section 18,

(c) direct that any order under paragraph (a) shall, if necessary, be deemed for the purposes of this Act to have

been made by a justice of the District Court …, or

(d) where it makes an order under paragraph (b), make a temporary order under paragraph (a) pending the

making of an order by the court to which the matter or question has been remitted.” (Emphasis added)

27. The thrust of counsel’s submissions was that, if this section had the effect of constraining, or placing some inhibition on the

operation of Article 40 which directs the release of an applicant “forthwith”, and not permitting any of the options set out in (a) to

(d), by implication it would be constitutionally questionable. For this reason, it was submitted, the section relates only to judicial

review proceedings, and not to inquiries under Article 40, the constitutional effect of which, if successful, is that the child or children

should be released “forthwith”.

28. Section 23 does not appear to have been drawn to the attention of the Court in N v. HSE. But, the judgments of the court,

particularly that of Murray C.J., (albeit framed in terms of constitutional rights), are, in fact, quite consistent with the words of s.23.

There, this Court held that a phased transfer of the child from the adopting parents to the natural parents was “in the vindication of

the child’s personal rights under Article 40.3 of the Constitution”, put another way, the phased arrangement was in the court’s

fulfilment of its constitutional duty towards the child. These ‘paramount’ welfare rights are now given constitutional expression in

Article 42A of the Constitution. The same considerations underlay the judgment of this Court in FX, albeit in a different context.

29. There is nothing in the wording of s.23 which indicates that it is confined in its effect to judicial review proceedings. A range of

authorities make it abundantly clear that an order under Article 40 of the Constitution can have the effect of rendering an order of a

District Court “invalid”, where, as here, there has been a denial of natural justice or fair procedures. Section 23 of the Act specifically

uses the words “in any proceedings”; that should be read to include an inquiry under Article 40. This statutory provision does not

abrogate or attenuate the interpretation or implementation of the provisions of Article 40, but rather must be seen in the context of

the sequence in which orders may be made by the High Court, in such exceptional circumstances. I would emphasise that the

availability of this statutory s.23 mechanism arises only because of the special status of this form of proceedings involving child

welfare, and because of the existence of Article 42A of the Constitution. It should not be assumed, therefore, that any similar

provision could be deployed in an area where these conditions do not apply.

30. A lawful application of s.23 renders it imperative, first, to ensure full compliance with the letter of Article 40.4.2. In such rare

cases, the correct sequence of orders must be properly observed. In order to maintain the integrity of Article 40, a court may not

make an order under s.23, unless and until it has held that the order of the District Court or Circuit Court is invalid. To hold otherwise

would unlawfully inhibit the Article of its full effect. Section 23 enjoys the presumption of constitutionality, and may be invoked in

“any proceedings”. The effect of an order for release “forthwith”, under Article 40, is that the child, the subject matter of the invalid

court order, is at liberty. But, a finding of invalidity, and a consequent order for release, once made, does not debar the court itself,

or an applicant in that behalf, thereafter, from seeking to protect and vindicate the welfare rights of children under Article 42A of the

Constitution, in exceptional circumstances, such as arose in this appeal. In such a case, therefore, where a child is the subject

matter of an order under Article 40, a court which has made an order of invalidity, after ordering the release of the child, may lawfully

then, and only then, invoke or rely on the provisions of s.23 of the 1991 Act. The provisions of that section now find their

constitutional basis in the provisions of Article 42A of the Constitution, maintaining the best interests of the child as the paramount

consideration. Thus, s.23 allows for a situation where, on a finding of invalidity, the High Court may, as it were, in the legal sense,

“step into the shoes” of the District Court, and make such order as may be permissible under the section for the vindication of the

welfare rights of the child or children in question.

31. As in all human situations, there is a spectrum of circumstances where, at the extremes, orders for the protection and vindication

of children may necessarily have to be made on an emergency or ex parte basis. But the position in the District Court here was not

one of those cases. The position was one, rather, where, on the facts, the requirements of constitutional fairness would properly

have dictated that the District judge grant a short adjournment.

32. It is, of course, self-evident, and now constitutionally enshrined, that childcare proceedings in the District Court, and in all courts,

must have, as their paramount concern, the welfare of children. However, a number of rights are engaged in such proceedings. In The

Child & Family Agency v. OA [2015] IESC 52, [2015] 2 I.L.R.M. 145, a judgment delivered in this Court on the 23rd June, 2015, I

observed at p. 148:

“… in child care cases a number of constitutional rights are at stake. Among these are, first, a child’s right to have

decisions made with his or her welfare as a paramount consideration; second, the rights both of parents, (designated in

the Constitution as the natural custodians of children), and of children themselves, to be properly represented in

proceedings where the outcome can be truly life-changing for all involved.”

33. In the instant case, the practical vindication of the rights of parents warranted an appropriate, proper and effective level of legal

representation in the District Court proceedings permitting real engagement therein. The situation which arose in this case, although

undoubtedly motivated by proper intentions, unfortunately amounted to a denial of the constitutional rights of the parents. As a

matter of fair procedures, both respondents had the right to meaningfully engage in the proceedings. This necessitated effective legal

representation for both parents. In the absence of such fair procedures and natural justice, the hearing was not in accordance with

law.

34. In holding that Article 40 is appropriate, in these exceptional circumstances, where there has been a denial of constitutional

justice, I would not wish to be taken as, in any way, derogating from the clear observations of this Court made in Ryan or Roche

(Dumbrell). I would hold that a constitutional application of s.23 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. I would entirely deprecate the usage of

Article 40 proceedings in routine inter-parental care disputes. Moreover, the duty of the court hearing such an application is always

to have the welfare of children as the paramount consideration.

Mootness

35. The respondents submitted that the appeal is moot. I would not accept that contention. As was pointed out in KA (cited earlier at

par 13), a procedural flaw of a fundamental nature, at the outset of a custody case, may have ongoing effects, which necessarily

have continuity. Moreover, the issues arising bear not only on this case, but may have consequences in other cases. Thus, it seems

to me that this case should be seen in the same light as those cases, such as Condon v. Minister for Labour [1981] I.R. 62, and

O’Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62 [2007] 1 I..R 328, where the Court should determine the appeal

in the interests of the proper administration of justice. (cf. Lofinmakin v. Minister for Justice, Equality & Law Reform [2013] IESC 49,

[2013] 4 I.R. 274).

36. For the reasons outlined herein, I would dismiss the appeal therefore.