IESC 9 · Supreme Court

THE SUPREME COURT

[Appeal No. 094/2015]

Denham C.J.

O’Donnell J.

MacMenamin J.

Laffoy J.

Dunne J.

Charleton J.

O’Malley J.

BETWEEN

S. McG AND J.C.

APPLICANTS/RESPONDENTS

AND

THE CHILD AND FAMILY AGENCY

RESPONDENT/APPELLANT

Judgment of Ms. Justice Dunne delivered on the 23rd day of February, 2017

I have read the judgments of my colleagues, MacMenamin J. and O’Donnell J. in this matter and I concur with their judgments. I want

to add a few brief observations of my own. The underlying issue in this case is whether it is appropriate to make an application to the

High Court under Article 40.4.2° of the Constitution in the context of care proceedings brought by the Child and Family Agency (“the

CFA”) in the District Court which resulted in the making of an interim care order in respect of two children of the

applicants/respondents (hereinafter referred to as “the Parents”). An interim care order under s. 17 of the Child Care Act 1991 (as

amended) (“the Act of 1991”) was made in the Dublin District Court on the 29th October, 2015 removing the children who had been in

the mother’s care and placing them under the care of the CFA. The Parents had and have serious drug addiction problems. As a

result, the children had been living in circumstances described as “chaotic”.

Having applied for an interim care order pursuant to the provisions of s. 17 of the Act of 1991 on the 29th October, 2015 as set out

above, the solicitor for the CFA and the solicitor for the mother had discussions before the hearing commenced. It also appears that

the mother’s solicitor indicated the difficulties of the father to the District Court judge and made it clear that he faced particular

difficulties in the absence of representation. Both the solicitor for the CFA and the solicitor for the mother were prepared in the

circumstances to agree to a week’s adjournment of the proceedings in which the s. 17 order had been sought in order to facilitate the

mother’s solicitor in preparing to meet the case being made against the mother and to allow the father to obtain emergency legal aid

as the mother had obtained. What is significant is that the circumstances at that time were not so urgent as to require an immediate

hearing. Unfortunately, the District Court judge did not agree and was disposed to proceed with the matter on that day. The conduct

of the District Court hearing on the 29th October, 2015 has been described fully in the judgments of MacMenamin J. and Charleton J.

and suffice it to say that in circumstances where the mother of the children had representation but the time available to her solicitor

to prepare for the hearing was inadequate and in circumstances where the father had no representation, was functionally illiterate

and was quite clearly not capable of properly representing himself on the day, it was concluded in the High Court that it was

appropriate to direct the release of the children back into the care of the mother albeit that the order made in the High Court

provided for a phased return of the children, following discussions between the parties.

One can understand the concerns of a District Court judge dealing with such applications which have at their heart the welfare of

children. These children were living in very difficult circumstances and as the history of the case has shown, the children were

subsequently made the subject of further care orders and remain in care at the moment.

The point I wish to make however is that whilst this particular case arose in circumstances where there was a flawed hearing before

the District Court given the lack of fair procedures in circumstances where the mother’s legal representation was simply not able to

deal with the matter in the time span available and the father had no legal representation and was not in a position to represent

himself, the outcome of the proceedings might well have been different had the application before the Court been an application for

an emergency care order pursuant to s. 13 of the Act of 1991. In that context it would be helpful to set out the provisions of s. 13 of

the Childcare Act 1991, as amended. It provides:

“(1) If a justice of the District Court is of opinion on the application of the Child and Family Agency that there is

reasonable cause to believe that –

(a) there is an immediate and serious risk to the health or welfare of a child which necessitates his being placed in

the care of the Child and Family Agency, or

(b) there is likely to be such a risk if the child is removed from the place where he is for the time being,

the justice may make an order to be known and in this Act referred to as an ‘emergency care order’.

(2) An emergency care order shall place the child under the care of the Child and Family Agency for a period of eight days

or such further period as may be specified in the order. . . .”.

Section 13(4) goes on to provide that an application for such an order may be made ex parte “if the justice is satisfied that the

urgency of the matter so requires”.

It is important to emphasise, as has been pointed out by MacMenamin J. in his judgment, that child care proceedings in the District

Court and in all courts must have as their paramount concern the welfare of children (see para. 32 of the judgment of MacMenamin

J.). As can be seen an order pursuant to s. 13 may be made ex parte. Even if not made on an ex parte basis, it may be that the

exigencies of the situation and the risk to the safety and welfare of the child or children may be such that an order has to be made

there and then having regard to the welfare of the children in circumstances where the parents may not have an opportunity to be

present, to be heard, or to be represented before the Court. It is clear therefore that in some instances the requirement to take

steps to protect children may take precedence over the rights of parents to fully participate in such hearings. It is for precisely that

reason that a s. 13 emergency care order subsists for a period of no more than eight days and may indeed be for a shorter period of

time. Such a situation is far removed from the circumstances that prevailed in this case. What was before the Court in this case was

an application for an interim care order and it is clear that there was no immediate risk to the safety or welfare of the children. It is in

those circumstances that a short adjournment would have ensured that the Parents had appropriate representation before the

District Court and a full opportunity to be heard by the District Court in respect of the application for an interim care order.

In all the circumstances I think it is important to point out that there is a difference between an application for an order for an

emergency care order and an application for an interim care order. In the latter case, the requirement to afford fair procedures to the

parties before the Court may necessitate the adjournment of the proceedings for a short period of time. It has to be emphasised that

even in the context of an application for an interim care order, the circumstances may be such that that even a short adjournment

may not be appropriate, having regards to the welfare of the child or children concerned. However, on the facts of this case I am of

the view that a short adjournment of one week would not have prejudiced the CFA (who were willing to agree to such an

adjournment) and would have facilitated the Parents in ensuring that they were properly represented before the Court. More to the

point, such an adjournment would not have caused any risk to the children’s safety and welfare. In all the circumstances I would also

dismiss the appeal.