Supreme Court allows habeas corpus appeal in child care case despite procedural error not causing complete jurisdictional failure.

An Chúirt Uachtarach

The Supreme Court

Denham CJ

O’Donnell J

MacMenamin J

Laffoy J

Dunne J

Charleton J

O’Malley J

Supreme Court appeal number: 2015 no 000094

High Court record number: 2015 no 1796 SS

[2015] IEHC 733

[2017] IESC 000

Between

S McG and JC (habeas corpus in child care)

Applicants/Respondents

- and -

The Child and Family Agency

Respondent/Appellant

Judgment of Mr Justice Peter Charleton, delivered on Thursday 23rd February 2017

1. This appeal concerns the applicability and scope of the remedy of habeas corpus as it is delineated in the Constitution, particularly

in its application to child care cases.

2. On 29th October 2015, the District Court in Dublin made an interim care order under s. 17 of the Child Care Act 1991 (as amended),

removing the children from mother and father, the respondents on this appeal, and placing them under the care of the Child and

Family Agency. The mother and father had, at the time of the making of the care order, and continue to have, serious drug addiction

problems. Swiftly, because of a concern by their lawyers that their procedural interests had not been respected, an application was

made to the High Court under Article 40.4.2º of the Constitution to inquire into the lawfulness of the detention of the children. The

issue centred on whether the parents had been heard. An adjournment of a week was sought to allow the father to obtain legal

representation and to allow the mother to properly instruct her solicitor who was not appointed until the morning of the hearing. This

was consented to by the Child and Family Agency, but refused by the District Court. By judgment of Baker J in the High Court of 17th

November 2015, it was held that there had been a failure by the District Court to afford the mother and father an opportunity to “fully

engage with the evidence.” As the interim care order application in the District Court concerned “the day-to-day relationship and care

of the children by their mother, and the ongoing contact between the children and their mother, the frailty in making the order

impact[ed] on its validity in a way that failed to engage the welfare of the children and their place in the family unit”, an order of

release from custody under Article 40.4.2º was ordered by the High Court. This final, and necessarily unsophisticated, order was

tempered, after hasty negotiation, by an agreement between the Child and Family Agency and the parents so that the parents did

not then have their children returned to their care. The order of the High Court was not implemented straight away but, an

opportunity was instead given to the Child and Family Agency to return to the District Court and obtain another order under the Act

of 1991. Since the date of the first application, the children remain in foster care under the Child and Family Agency. An update on

the chronology filed indicates that both parents continue to struggle with drug addiction problems. The Child and Family Agency have

directly appealed the High Court order by leave of this Court. The Child and Family Agency regard as anathema the application of any

habeas corpus type remedy to child care matters. The leave given by this Court includes these issues:

3. Where children are made subject to an interim care order under section 17 of the Child Care Act 1991 requiring “that

the child named in the order be placed or maintained in the care of” the applicant Child and Family Agency, are such

children ever subject to a habeas corpus remedy under Article 40.4.2º of the Constitution as being “unlawfully detained"?

4. Whether the availability of other remedies besides habeas corpus under Article 40.4.2º, such as an appeal and in the

context of such provisions in the Child Care Act 1991 as sections 21 to 23, or such as judicial review, such as to remove

such cases from the jurisdiction of Article 40.4.2º?

5. As a matter of principle, is the habeas corpus remedy under Article 40.4.2º of the Constitution appropriate for child

care issues?

3. An issue has also arisen in respect of mootness, contained in grounds of appeal 1 and 2, as the original District Court order which

subsisted only for a limited time, is now spent and has been replaced by other orders. Since, on any view, the children are now in the

lawful custody of the Child and Family Agency, the mother and father have claimed that any issue as to the correctness of the High

Court judgment is spent. That is not agreed. Further, the parents of the children are no longer seeking to have their children returned

to them from foster care, at least until their personal situation improves. While this appeal may be an exercise in the correction of an

error by the District Court, it is entirely futile as to the paramount consideration of every court in child care matters, which is the

welfare of the children. The judge of the High Court was apparently persuaded that the remedy against a chaotic release that is

explicitly in the 1991 Act was inapplicable. This was wrong.

The Child Care Act 1991

4. The Child Care Act has been amended since its enactment in April 1991, most particularly by the Children Act 2001, the Health

Acts 2004 and 2007, the Child Care (Amendment) Acts 2007 and 2011 and by the Child and Family Agency Act 2013, which had the

effect of setting up an agency of that name to fulfil what were previously functions of a health board. The main function of the Child

and Family Agency is set out under s. 3 of the Act of 1991 as amended, which provides that the Agency shall “promote the welfare of

children who are not receiving adequate care and protection.” Under s. 4, the Child and Family Agency has a duty to take “into its

care” any child which “requires care or protection which he [or she] is unlikely to receive unless” that child is taken into care. Section

12 empowers gardaí to remove a “child to safety”, where there are “reasonable grounds for believing that there is an immediate and

serious risk to the health or welfare of a child” such that “it would not be sufficient for the protection of the child” to await the

making of an application to the court for an emergency care order under s. 13. A child so removed to a place of safety must be the

subject of an application for such an order within 3 days, and a special sitting of the District Court may be so arranged. There are

consequential powers which involve the exercise of the coercive authority of the State.

5. The emergency care order under s. 13 is made on the same basis of “an immediate and serious risk to the health or welfare of a

child” but also encompasses a risk of abduction or hiding the child where such behaviour would create a serious risk. Orders made

under s. 13 may last for up to 8 days. In executing the order, the gardaí have similar powers of entry as in section 12. If the “urgency

of the matter so requires”, the application to the District Court may be made without notice to the parent or person acting in the

place of a parent. Under s.14, such a parent must be informed “as soon as possible” that the child is in the care of the Child and

Family Agency, unless the parent is missing. The serving of the court order may constitute notice. Clearly, the powers contained in

ss. 12 and 13 are emergency measures.

6. Under s. 16 the Child and Family Agency is authorised, and duty bound, to bring care proceedings, which are on notice to parents

and guardians. These are mandated where “a child requires care or protection which he [or she] is unlikely to receive unless a court

makes a care order or a supervision order”. It may be noted that in describing a care order, no distinction is drawn between an

emergency care order, an interim care order or any longer term of care order in terms of the power to apply for such an order and the

duty to apply for such an order. This context is important in discerning the intention of the legislature, since while specific

descriptions are given to various forms of care order; s. 16 in common with s. 23 simply refers generically to care orders. The

legislation also provides for special care orders and interim special care orders under Part IVA. Sections 16 and 23 do not refer to

types of care order as “emergency” or “interim” in such a way as to take them outside the general definition of a care order, the

mandate of the Child and Family Agency in that respect, and the overarching duties of child protection which the legislation

establishes. Within this context, the wording of s. 17 – which governs the making of interim care orders – does not contradict the

generality of the meaning of what is a care order. It provides a jurisdiction to the District Court to make an “interim care order” but

only where “an application for a care order … has been or is about to be made (whether or not an emergency care order is in force)”.

An interim care order under s. 17 is only to be made where it is “necessary for the protection of the child’s health or welfare” and, of

necessity, this also encompasses grounds set out in s. 18(1) that the child “has been or is being assaulted, ill-treated, neglected or

sexually abused”, or the child’s “health, development or welfare has been or is being avoidably impaired or neglected” or “is likely to be

avoidably impaired or neglected”. An interim care order is made, “pending the determination of the application for the care order”. The

general limit to such an order is, under s. 17(2)(a), 29 days, but may be made for a longer period where there is parental consent. An

extension may also be granted on the application of any of the parties, where the court is satisfied that the “grounds for the making

of an interim care order continue to exist with respect to the child”.

7. Under s. 18, a care order commits “the child to the care of the Child and Family Agency for as long as he [or she] remains a child”

or for a shorter period. The court may of its own motion or on application extend the operation of the care order. While such an order

is in place, under s. 18(3), the Child and Family Agency have “like control over the child as if” it were the parent and may do what is

“reasonable … in all the circumstances … for the purpose of safeguarding or promoting the child’s health, development or welfare”.

The court order may extend to child support by the parents. While a full panoply of parental rights are granted to the Child and Family

Agency on the making of a care order, perhaps out of caution, ancillary powers as to medical examination and passports are also

granted. A supervision order may instead be made under s. 18(6) between “the making of an application for a care order and its

determination”. There is also a power in the court to give “such directions as it sees fit as to the care and custody of … the child”,

but such directions cease to apply where the application for a care order is determined. A supervision order under s. 19 is a milder

form of court order. This is granted where the court is “satisfied that there are reasonable grounds for believing that” the grounds set

out in s. 18(1) exist, and such an order essentially requires parents to allow visits by social workers and the provision of advice.

8. Section 20, which contains similar language to s. 16, provides that where proceedings between parents in a family dispute are

before a court, there is a general power for that court to require the Child and Family Agency to investigate a child’s circumstances

on the basis that “it may be appropriate for a care order or a supervision order to be made”. No differentiation is made as to whether

such a care order should be emergency, interim, or a full care order, but rather a general use of language is adopted. Within the

definition section of the 1991 Act, there is no reference to what a “care order” means. The meaning must thus be gleaned from the

legislation. In particular, the use of that expression requires to be analysed within its context. Any appeal may, under s. 21, “stay the

operation of” any order but only if the court making the order or the appellate court, in this instance the Circuit Court, “so

determines”. A stay is thus not automatic, as it would be in the fixing of recognisances in a District Court criminal conviction or

sentence. Section 22 authorises the variation or discharge of orders by a court of its own motion or on application.

Role of the High Court

9. In her judgment releasing the two children from the care of the Child and Family Agency, Baker J did not analyse the role of the

High Court in circumstances where any such care order must, for whatever reason, be deemed invalid. That was the submission made

to her and it was an erroneous submission, one contrary to the proper interpretation of the legislation. As the argument in this court

on behalf of the Child and Family Agency developed, it appeared that the specific provisions in s. 23 of the 1991 Act enabling the High

Court to effectively take the place of the District Court on an application to quash a care order were construed to the High Court as

inapplicable to a habeas corpus application. Part of the background to this submission was a view taken that authority apparently

prevented the High Court from condemning a District Court order on a habeas corpus application and, further, that the language of

the section in itself confined such a power to the impugning of a full, as opposed to an emergency or interim care order (which this

was). It seems that both sides on this appeal agreed to this interpretation of s. 23 while in the High Court. This interpretation cannot

be correct. Section 23 of the 1991 Act provides:

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 the Child and Family Agency

under section 18,

(b) make an order remitting the matter to a justice of the District Court for the time being assigned to the district

court district where the child resides or is for the time being or was residing or was at the time that the invalid

order was made or the application therefor was made; and where the matter has been so remitted the Child and

Family Agency 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 for the time being assigned to a district court district, specified by the

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.

10. An application under Article 40.4.2º, commonly called a habeas corpus application, is a proceeding in which a court “declares …

that a care order is invalid”. To be invalid and order does not have to be quashed. That application is to be heard swiftly and it is to

be determined one way or the other. If the result is that a child must be released from some form of care order, the Oireachtas

explicitly stepped in to ensure that chaos did not ensue and that children were properly taken care of. This is in the interests of the

rights of vulnerable children. While there is now a specific article of the Constitution making the welfare of children paramount, it was

always part of the judicial architecture that the vulnerability of the young required their interests to be superior. The language of the

section is permissive: it depends on the circumstances and is not inevitable. The language of ss. 16 and 23 entitles a court to make

further orders in circumstances where an initial order has been deemed invalid. This entitlement is not limited to full care orders but

also encompasses emergency, special or interim care orders. All are care orders. The section does not choose a particular kind or

make any distinction in favour of one or other in its language. While applying the canon of construction which states that the

definition within legislation of a concept requires that definition to be consistently kept, that rule does not necessarily apply where a

context contradicts the principle. The setting within which a particular definition operates can displace the ordinary application of this

canon. The wording of the legislation powerfully suggests that the concept of a care order is both generic in ss. 16 and 23, in the

sense of applying generally to care orders of all types, and is specific when accompanied by particular words which narrow that

concept into a specific meaning. Such words requiring that specific definition are used in the Act within particular sections as

delineating powers referable thereto. Where words constricting the meaning of a care order are used in a section, the section in

question is properly to be read as applying solely to that variety of care order. Where such words are not used, the concept of what

a care order enables the District Court to do is clearly generic.

11. The State (Aherne) v Cotter [1982] IR 188 is cited by counsel for the Child and Family Agency as authority for the proposition

that on a habeas corpus application, the High Court may merely order the release of a detained person and not quash any underlying

order. It may be noticed that Henchy J at p. 201 described that application as beginning “as a misconceived application for habeas

corpus” which went “further awry as it proceeded.” In the Supreme Court, the application was treated as what it was in substance;

namely an order quashing an increase in sentence upon an appeal in a criminal case from the District Court to the Circuit Court. Any

rule that the High Court could not quash any order necessary to require the release of a person unlawfully detained from custody

conflicts with the self-executing nature of the Constitution and further with the amplitude of the powers which the High Court

exercises under Article 40.4.2º. Furthermore, where a child is required to be released from under the protection of a care order

because the High Court determined that it is an order which “for whatever reason is invalid”, by such plain words s. 23 is clearly

applicable. In the case of invalidity, the High Court is empowered to not immediately release the child but rather “refuse to exercise

any power to order the delivery or return of the child to a parent or any other person if …of opinion that such delivery or return would

not be in the best interests of the child”. Instead, the High Court is empowered to itself make a care order. This may be deemed to

be the High Court exercising a District Court jurisdiction: a rare case in our legislative scheme but one that could not be more explicit

here. The High Court may also remit the matter to the District Court as if an application under s. 18 of the 1991 Act were already

made. In remitting the matter, a temporary order may be made by the High Court. This is, in itself, yet another form of the generic

use of the concept of a care order, the specifics of which caused confusion on both sides on this appeal.

12. Consequently, it is clear that in the event that an order under the 1991 Act is found to be invalid on any form of application in the

High Court or elsewhere, the Oireachtas were determined to ensure that the net result would not be one of a possibly dangerous or

chaotic return to the custody of a parent who may be abusive or seriously neglectful but rather that an independent judgement be

then exercised as to what was in the best interests of a child in terms of care and control. And that is what the High Court should

have done in this case, rather than ordering the release of these children “forthwith from … detention”, as the order of 18th

November 2015 states. Such an order may undermine child safety. While holding that an order of habeas corpus should have been

granted, the analysis of MacMenamin J for the majority is to the same effect.

13. It is another question entirely as to whether any form of habeas corpus order was available within the delicate context of a

dispute over the care and welfare of children. Furthermore, it does not answer the question as to whether children who are the

subject of a care order can truly be said to be in some form deprived of their liberty.

Habeas corpus and child custody

14. Article 42A of the Constitution recognises “the natural and imprescriptible rights of all children”. Under Article 42A.2.1º, it further

declares that in “exceptional cases” where there has been a failure of parents “in their duty towards their children” to the extent that

their “safety and welfare … is likely to be prejudicially affected”, the State “as guardian of the common good shall, by proportionate

means provided by law, endeavour to supply the place of the parents”, but this is always with “due regard to” the rights of children.

Under Article 42A.4.1º, in the “resolution of all proceedings” that the State brings “for the purpose of preventing the safety or welfare

of the child from being prejudicially affected”, “the best interests of the child shall be the paramount consideration.” This mirrors

section 3 of the Guardianship of Infants Act 1964. It has been the litmus test in child care and custody cases at least since that time

and probably well before. Ireland never operated a Roman law system of the paramount right of a father. While reference is made in

the Constitution to law in each relevant sub-article and in particular to provisions that “shall be made by law”, the Constitution

executes itself. These considerations are not dependent upon any declaration in law, for since the passing of the 1991 Act and its

amendments, there have been no such specific provisions. None are needed. Such rights, in any event, subsisted in the old form of

Article 42. Whether any additional rights were grafted on by the language of Article 42 through the 31st Amendment of the

Constitution that introduced Article 42A is a matter for a relevant case. Certainly, the basic rights of the child in Article 42 were, at

the least, preserved.

15. No part of the Constitution is to be read in isolation. Such an approach would lead to results not warranted by the Irish people in

their assent to our basic law. One erroneous avenue of construction is the consideration of Article 40.4 out of context with the rights

to a trial on a criminal charge in “due course of law” as guaranteed by Article 38 and the existence and structure of the courts

system as set out in Article 34. A denial of procedural rights may be so fundamental as to undermine the nature of the resulting order

of a court. While the High Court is, in the words of Article 34.3.1º “invested with full original jurisdiction in and power to determine all

matters and questions whether of law or fact, civil or criminal”, it does not exercise the jurisdiction of the District Court, a court of

“local and limited jurisdiction” under Article 34.3.4º. Section 23 of the 1991 Act is an exception to the usual legislative structure,

allowing the High Court to exercise a jurisdiction in child protection matters that has been properly conferred on the District Court.

While some of the functions of the courts may be administrative in nature, as in making of such orders for the preparation of cases for

hearing which do not require judicial consideration, the vast panoply of executive power is beyond their scope. Courts do not give

planning permissions or licences or assess taxpayers as to their annual liability. In Deighan v Hearne [1986] IR 603, a taxpayer

neglected to file returns and was assessed to tax. He claimed that the High Court should conduct that task in the place of the

Revenue Commissioners. Murphy J at page 614 held that the High Court “has an inherent jurisdiction to decline to entertain certain

issues where legislation has provided other suitable and appropriate machinery”; and see R v R [1984] IR 296. In rare cases, the High

Court exercises a co-terminus jurisdiction with other courts, and exercises it not as an appeal, but as part of the authority conferred

by the Constitution; bail being the most obvious example, see The People (AG) v O’Callaghan [1966] IR 501.

16. Article 34, apart from providing for certain courts, namely the Supreme Court, the Court of Appeal and the High Court, along with

Article 38 providing for special courts or military tribunals, clearly contemplates that within the weave of access provided to courts

which are local and which are limited as to jurisdiction, there should be a weft of appropriate review proscribed by law as between

them, and as between them and higher courts as to the application of law. Since delineation as to appeal powers are set out in

relation to higher courts in Article 34, it must also be contemplated that it is expected that proper provision as to appeal will be part

of what is “determined by law.” It is only in rare instances that there is no appeal from a decision of the High Court; planning and

refugee claim judicial reviews are the main instances; now Article 34.5 of the Constitution applies. The general legislative structure

founded on the Constitution is to allow a rehearing appeal from the District Court in minor criminal and in civil matters, and the

consequences of the order generally being visited upon those to whom it is addressed only on affirmation by the Circuit Court. Hence,

the exceptional nature of section 21 of the 1991 Act. A similar structure operates in civil matters brought from the Circuit Court to

the High Court. Where the Circuit Court exercises its vast criminal jurisdiction in respect of serious offences, sitting necessarily with a

jury, the rehearing by the Court of Appeal operates through a transcript of the trial.

17. This web of interlaced review has been set down by law because mistakes in the definition of offences, in the application of

contract or tort law or in the reception of evidence are bound to occur. These are then subject to review through an appeal. Within

the criminal jurisdiction, testimony may be incorrectly excluded or may be wrongly allowed or in the analysis of such evidence, a court

may make a serious error. An instance occurred in the Special Criminal Court’s judgment in The People (DPP) v Paul Ward (Special

Criminal Court, unreported, Barr J, November 27 1998) where in the court’s written judgment, having admitted the accused’s

confession to murder in evidence, on analysis it was decided that it was unworthy of any weight at all. However, the reasoning

nonetheless justified a conviction by reference to facts drawn from it which were not otherwise proven. The Court of Criminal Appeal

overturned that conviction (Court of Criminal Appeal, unreported, Murphy J, March 22 2002). An interval of three years passed

between conviction and the overturning of the consequential life sentence on appeal. The Court of Criminal Appeal did not order a

retrial. There are many similar instances of a person convicted by a trial court being freed on appellate review. Might it be validly

argued that over that period the accused had been unlawfully detained? The criminal jurisdiction of an entitlement of a court to make

an order which is only overturned by a higher court exists also in civil matters and this extends, as the above analysis of the 1991 Act

indicates, to child care matters. Were the Circuit Court to order custody of children to their father and the High Court to overturn

that on appeal and make an order that the mother should be the custodian, would an argument be sustainable that any parental

authority exercised by the father prior to appeal was unlawful or, even worse, amounted to detention of the children?

18. The prohibition in Article 40.4.1º of the Constitution by its wording and within the context whereby courts are empowered to try

and to imprison people prohibits that any “citizen shall be deprived of his personal liberty save in accordance with law.” Legal

structures set up jurisdictions and set up fundamental norms as to the rights of litigants, whether these are the initiators of the cases

or whether they are those who have litigation thrust upon them. Courts must respect fundamental norms and egregious breaches of

these norms may undermine jurisdiction. One of those structures is the exercise by the High Court of supervisory authority under

Order 84 of the Rules of the Superior Courts, whereby the traditional remedies of certiorari, quo warranto and mandamus ensures the

compliance of judicial and administrative bodies with their jurisdiction and duty to act fairly and reasonably. Courts follow the rule of

law but legal complexity admits of error correctable on appeal. There is a duty thrust upon courts to conscientiously apply fair

procedures and to abide within the law. Since there is a jurisdiction to correct error, there is also a jurisdiction in courts to err.

19. When Article 40.4.2º refers to a situation where a “person is being unlawfully detained”, in isolation this may be taken to be any

situation where someone is subject to coercive restraint in consequence of any legal error. That cannot be correct. In the text, the

remedy is given as release and nothing else. Where an enquiry is initiated by the High Court, it must be concluded. There is a solemn

duty to “forthwith enquire”, and if necessary order the production of the “body of such person before the High Court on a named

day”. The enquiry is advanced by the detaining person or institution certifying “in writing the grounds of his detention”. The remedy is

a stark one. It is clearly specified that “the High Court shall …order the release of such person from such detention unless satisfied

that he is being detained in accordance with law.” Such lawful detention results from an order made within the structure of the courts

as set up by the Constitution and consequential legislation.

20. It is correct to refer to this procedure as habeas corpus; literally it means “you may have the body.” While it may be only a

legend that it was provided for in Magna Carta in 1215, it is certainly an ancient remedy and an imprescriptible and final guarantee for

the people against State or individual tyranny. Counsel for the Child and Family Agency have on this appeal sought to assert the

applicability of this remedy to family law, citing a range of cases where such disputes were brought before the courts; citing Kevin

Costello – Habeas Corpus in Ireland, pages 5-31. While it is correct that in the 19th century habeas corpus applications in the

context of child welfare increased, the reality may have been that it became accepted through practice and that emerged because it

was a convenient route to decide custody issues. Then, it was the English Crown that had the ultimate parental responsibility which

in Ireland was replaced by Article 42 of the Constitution, now Article 42A is most relevant. Since 1937, two cases have been cited: in

In Re Corcoran. Infants (1950) 86 ILTR 6, a child custody dispute, which involved a Catholic-Protestant and nationality clash, and In

Re Kindersley [1944] IR 111, in which an education issue was decided. In the latter case, Gavan Duffy J found that there was an

“equitable jurisdiction in habeas corpus, so that we find ourselves back at the common law position before the reform of the

‘seventies”, meaning the Judicature Ireland Act 1877. Specifically, he rejected an argument that the old common law remedy of

habeas corpus had been removed by Article 40.4 of the Constitution at pages 119-120. There was, he held, a “distinct jurisdiction of

this Court in habeas corpus where the custody of infants is concerned and the Court’s main preoccupation is their benefit.” That

issue was not considered by the Supreme Court.

21. Since habeas corpus was then a prerogative writ, it is not surprising that in the absence of legislation, it was used to decide child

custody issues. Prior to the enactment of the Constitution, it was also used to delineate military from civil jurisdiction, as in Wolfe

Tone’s Case (1798), see Robert Heuston – Essays in Constitutional Law (1961, London) and Egan v Macready [1921] 1 IR 265. It is

doubtful that the Constitution, in dealing with precisely the same remedy and in stating in detail a precise remedy for all cases of

unlawful detention, also preserved the procedures under the Indictable Offences (Ireland) Act 1849 and the kind of equitable

jurisdiction which would allow the gentle transfer of education rights from mother to father.

22. Once habeas corpus is properly available, everything in the decided cases indicates the widest amplitude of the remedy in the

Constitution. The High Court in Gallagher v Director of the Central Mental Hospital (No 2) [1996] 3 IR 1 at 6 was surely correct that

Article 40.4 implies the “widest possible powers to be conferred on the judge … conducting the enquiry” since that echoes the

statements of Ó Dálaigh CJ in Application of Woods [1970] IR 154 at 162 that a judge must examine any ground that might render

detention unlawful and of Kingsmill Moore J in The State (Hully) v Hynes (1966) 100 ILTR 145 at 163 that in habeas corpus a “very

wide field of enquiry is open to the court”. The High Court can follow any procedures which admit of a correct result and is not bound

by adversarial rules as it is the judge himself or herself who is mandated to conduct the enquiry.

23. This raises the question as to whether, given the wide latitude to determine the appropriate procedures to be followed in an

application for habeas corpus, a court possesses a jurisdiction to delay release once an applicant has proven that a person is entitled

to release under Article 40.4. In the judgment of the High Court, Baker J considered at para. 28 that: “a blunt order for immediate

release to a finding of invalidity is not the necessary or inevitable response to a finding that an order for detention is invalid”. Instead,

her view was that the obligations regarding the welfare of children enumerated in Article 42A permitted the use of a ‘phased’ or

‘staged’ release. Counsel for the mother and father have argued that there exists a line of authority suggesting that a successful

application under Article 40.4 need not lead to immediate release. They cite to this effect the judgment of Murray CJ in N v Health

Service Executive [2006] 4 IR 374, where he held at page 470 that:

A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for the

release of the person concerned from the unlawful detention with no further order being necessary. In this case there are

special circumstances, namely the welfare of an infant of tender years, to be taken into account when determining the

manner in which effect may be given to the order of this court pursuant to Article 40.

Such an approach is further supported by FX v Clinical Director of the Central Medical Hospital [2014] 1 IR 280, where at para. 78 of

her judgment Denham CJ held that there existed a jurisdiction to control the release of a person who is entitled to relief under Article.

40.4 where such a person is incapable of protecting themselves.

24. It is possible to take the view, however, that the stark nature of the order prescribed under Article 40.4 admits of only the making

of an order or the refusal of an order. In considering that wording, the inflexibility of the orders available on an application for habeas

corpus surely helps to inform the exceptional nature of this remedy. The plain words of Article 40.4 seem to require release, with no

further order. Since this is about the vindication of the constitutional imperative that “no citizen shall be deprived of his personal

liberty save in accordance with law”, can any order other than release be contemplated? The approach taken in The State (Trimbole)

v The Governor of Mountjoy Prison [1985] 1 IR 550 should also be considered as well as the above cases. In that case, the

prosecutor was not in Court at the time of the making of the order for release and as a result, the detainee was not immediately

released. An application was made on behalf of the respondent for a stay on the order of release. At page 570, Finlay CJ stated that:

… having regard to the express obligation imposed by Article 40, s. 4, sub-s. 2 upon the High Court, unless satisfied as to

the legality of the detention of a person seeking an enquiry under that Article to order his release, … it would be

inconsistent with the Constitution for this Court to exercise any right to stay such an order.

25. The view may perhaps be taken that to suggest that a successful application under Article 40.4 could lead to anything other than

immediate release is bypass the clear import of that constitutional provision. To permit a ‘controlled’ or ‘phased’ release seems at

variance with the plain text of Article 40.4, which bears repetition at this juncture:

Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person

is being unlawfully detained, the High Court … shall forthwith enquire into the said complaint and may order the person in

whose custody such person is detained to produce the body of such person before the High Court … and the High Court

shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is

detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied

that he is being detained in accordance with the law.

26. That stricture of immediate release must also inform the applicability of the remedy to child care cases in a context where the

paramount consideration is the welfare of the child. How can it be right to take a custody dispute into a realm where a child is simply

put into a state of nullity as regards any order for that child’s welfare? The reason that the child ever got to court in the first place

was because of a dispute between the child’s parents or, as in this case, those parents and the Child and Family Agency. It is not

enough to simply say that an order was stayed by agreement to enable a further order to be applied for in another court. Recently,

doubts have been expressed by judges of the High Court as to the applicability of Article 40.4 remedies to child custody issues; see

HSE v JM [2013] IEHC 12 where Birmingham J emphasised the time required to ascertain “what is in the best interest of [the child]”

and W v HSE [2014] IEHC 8 where Peart J would limit habeas corpus to “particular facts which justify an application for release”.

These remarks go beyond considerations of policy and inform instead the nature of the remedy and its inapplicability within the

constitutional structure to mistakes made by a judge of the District Court in the context of proceedings concerning the welfare of

children.

27. Such facts as could ever justify a habeas corpus application in the context of child care are very limited. In Ryan v Governor of

Midlands Prison [2014] IESC 54, the issue before this Court was the applicability of enhanced remission to a prisoner serving a

sentence. The application had been preceded by correspondence. This Court found that there was no defect on the face of the order

and that habeas corpus did not apply. Denham CJ quoted FX v Clinical Director of the Central Mental Hospital [2014] 1 IR 280:

65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach

is to seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an

application for judicial review may be the appropriate route to take. In such circumstances, where an order of the court

does not show any invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not

the appropriate approach.

66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless

there has been some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court,

with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a

fundamental denial of justice, or a fundamental flaw, such as arose in The State (O.) v. O’Brien [1973] 1 I.R. 50, where a

juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.

28. Denham CJ endorsed the line of authority that affirms that the lawful application of the jurisdiction created under the Constitution

does not turn an error within jurisdiction into the destruction of that jurisdiction. She stated at paragraphs 14-18:

14. Most recently, in Roche (also known as Dumbrell) v Governor of Cloverhill Prison [2014] IESC 53, Charleton J. pointed

out , and this Court would endorse:-

“ 21. There are many instances where, within jurisdiction, a court may fall into an error of interpretation or base its

decision on a mistaken view of the law. This does not in consequence remove jurisdiction. There are legal structures

in place to deal with such commonplace situations and these fall outside the obligation of the High Court to enquire

into and to declare that a detained person is either lawfully detained or not”.

15. The proposition that not every defect or illegality attached to detention will invalidate that detention has long been

established.

16. This is not a novel exposition of the law. In McDonagh v Frawley [1978] IR 131 at 136 it was stated:

“The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty

save ‘in accordance with law’ does not mean that a convicted person must be released on habeas corpus merely

because some defect or illegality attaches to his detention. The phrase means that there must be such a default of

fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus

purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or

even that jurisdiction has been inadvertently exceeded.”

17. Also, in The State (Royle) v Kelly [1974] IR 259, Henchy J. stated at p 269:-

“The mandatory provision in Article 40, s. 4, sub-s. 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 the 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.”

18. Thus the general principle of law is that if an order of a Court does not show an invalidity on its face, 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.

29. As the law stands, an applicant for habeas corpus who has been through a lawful process whereby there is detention in

accordance with legal form, must show the following in order to obtain immediate release: that the warrant is fundamentally flawed,

subject to the entitlement of the High Court conducting the enquiry to seek other documents to clarify any want of form, ambiguity

or error as in Miller v Governor of the Midlands Prison [2014] IEHC 176 and MC v Director of Oberstown Detention School [2014] IEHC

222; or that the court did not have jurisdiction to make the order impugned; or that there was such a fundamental and egregious

denial of procedural rights as entirely stripped the court of its jurisdiction. The Constitution requires that the remedy in Article 40.4 is

not to be used to usurp the structures which it has set up or to operate as a parallel jurisdiction out of context with the functioning

of the courts in the making of orders and the appeal of those orders.

Dissent as to the order on this appeal

30. This dissent is not as to the applicable principles, which accord with those set out in the judgment of MacMenamin J for the

majority, but rather on the question of whether a complete denial of justice occurred which rendered the District Court order a nullity.

The flaw of this application is perhaps shown by its consequences. There would have been nothing to stop the mother and father, as

parents, simply taking the order of the High Court and resuming custody of their children. No protection would have been available for

these children, because according to the logic of the judgment of the High Court in this case, no order would be available to it in

consequence of the order of release of the children. Therefore, the paramount consideration of the welfare of the children would be

set at nought. Within a context where the courts are the primary guardians of the Constitution, such an approach cannot be right.

31. The circumstances of the impugned hearing in the District Court involve a mother who had representation, but where there had

not been enough time for her solicitor to consider social work reports, and an unrepresented and unlettered father who required legal

assistance as well. It is difficult to know why papers had not been served on the mother’s solicitor beforehand. It is also hard to

understand why, in such a serious context, an issue of the father’s separate legal representation was suddenly raised. Where was the

conflict requiring separate representation for both mother and father? And where was the acknowledgement of the unreality that

within a week, he could have applied for and obtained legal representation? A week is the time period, because an adjournment of a

week was consented to by the Child and Family Agency, but the judge, apparently having considered the papers, decided that the

case should proceed. Once a child care issue comes before a court, it is properly to be characterised as an enquiry. In an enquiry,

the responsibility becomes that of the enquirer, here the District Court. As was said by O’Flaherty J in Southern Health Board v CH

[1996] 1 IR 219 at 237, proceedings like this “are in essence an inquiry as to what is best to be done for the child in the particular

circumstances pertaining.” The court, as enquirer, should be alert to danger to a child and in particular the consequences of a

procedural decision. If the court is not so alert, then mistakes can be made. The consequences could be more than serious.

32. What is complained of here is an error as to procedure. Nothing worse than that was proved. Hence the dissent in this section is

not on principle but on proof. There was a hearing. No doubt, even though the reports had not been read by the start of the case,

people can catch up. It is an unknown factor as to what danger the children were in. The District Court took a strong view. Perhaps

that was wrong. The burden of proving a complete casting off of jurisdiction is on the applicant who seeks to obtain habeas corpus

notwithstanding an ostensibly valid court order. The circumstances proven before the High Court are insufficient to show that the

court had thereby cast off its jurisdiction through procedural error. The circumstances do not show that the District Court was not

pursuing the constitutional requirement that the welfare of the children be paramount, that is above any other consideration. It may

be the case, but the burden of proof in that respect is a heavy one and rests on any applicant who seeks to assert the wholly

exceptional circumstances applicable to habeas corpus as a remedy in this context. Perhaps the judge considered that in the context

of involvement by social workers with the family over the previous two years, a point had been reached where the children were now

in jeopardy of a serious kind. The circumstances of emergency which inform ss. 12 and 13 of the 1991 Act may have been reached. If

they had, then the judge was constitutionally bound to apply the principle of the paramountcy of the welfare of the children in

reaching her decision.

33. Once the matter was before the District Court judge and she had considered the matter, her duty was to make a decision in the

best interests of those children. Perhaps in a judicial review application a consideration of the circumstances might show a failure in

procedures, but on the papers that are before the Court on this appeal, what is not demonstrated is that the judge failed in her

constitutional duty to apply the welfare of the children as the paramount consideration in her decision. It is also worrying that in the

aftermath of the High Court order, there was no return of the children to the parents and that this situation where the Child and

Family Agency are supplying the place of the parents could continue up to the present time. An appeal was available. Further, the

solicitor for the parents could have made a further application to rehear some aspect of the case at a different time. Child care

proceedings under the 1991 Act are of a continuing nature. Hence, the justification for the dissent is on this point.

Detention and childcare proceedings

34. There has been no argument on this appeal as to the limits of parental authority. Counsel for the Child and Family Agency have

argued that for a child to be in the care of that agency is not for that child to be in detention. It would be inappropriate to attempt

to define the limits of natural parental authority. Article 42.1 of the Constitution recognises the family as “the primary and natural

educator of the child”. In describing the family in Article 41.1.1º as “the natural primary and fundamental unit group” of society and

describing it as a “moral institution”, it guarantees in Article 41.1.2º to “protect the family in its constitution and authority, as the

necessary basis of social order and as indispensible for the welfare of the Nation and the State.” This is difficult, however, to

construe as an authoritarian precept since the references in Article 42.1 are to “inalienable” rights and duties in relation to parents to

provide for “the religious and moral, intellectual, physical and social education of their children.” These are nurturing duties, as rightly

the function of a father and mother is.

35. When the steps which necessarily may be required to take a child from its parents and the powers contained in the 1991 Act in

that regard are considered, however, it is hard to avoid two conclusions. Parents as leaders of a family are entitled to nurture their

children and those offspring are related to their father and mother through the duty of love, education and protection which is owed

towards them. As the Constitution recognises in Article 42A, taking a child away from the embrace of its family is an ultimate step

only possible where there has been real parental failure. Enforcing that power may not involve detention, but it certainly encompasses

the exercise of the State’s coercive power to place children elsewhere than with their parents. While the older habeas corpus cases

in relation to child care and education may now properly be regarded as superseded by Article 40.4, coercive measures to temporarily

suspend or break family bonds through separation still may properly be described as ones of detaining children away from their

parents. This is not to say that all care orders made under the 1991 Act amount to detention (for instance, some such orders may be

made with the consent of parents who acknowledge that they are currently incapable of properly taking care of their children), but

certainly, the importance placed on the institution of the family in the constitutional text seems to lead to the inevitable conclusion

that, when the State removes children from the natural order of family life, such a removal may, depending on the circumstances,

amount to detention.

Mootness

36. Where other facts or events have rendered moot the live issues between the parties, this Court will generally decline to proceed

to hear and determine the matter; see Murphy v Roche [1987] IR 106, with Finlay CJ at page 110 stating that:

There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional

issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not

necessary for the determination of the rights of the parties before it.

Exceptional circumstances can override this principle. That may occur where one or both parties have a material interest in a point of

law of exceptional public importance. In such circumstances, this Court may, in the interests of the due and proper administration of

justice, determine a spent point as was determined in Irwin v Deasy [2010] IESC 35. A moot issue may also be considered if a case is

designated as a test case, as happened in Okunade v Minister for Justice [2012] 3 IR 152. Sometimes a pending decision may have a

real consequence for a significant number of other cases; O'Brien v PIAB [2007] 1 IR 328 and Lofinmakin (a minor) & Ors v Minister

for Justice [2013] 4 IR 274.

37. While discretion exists to hear a moot appeal, in reality this appeal may not be moot at all. There is ongoing litigation between the

mother and father as parents in relation to the future care of their children by the Child and Family Agency. There have been several

orders made in this context by the District Court and there will probably be more. It is capable of repetition that one or other parent

will be unrepresented but that a court will feel that a decision simply must be made. In those situations of a conflict between the

procedural rights of the parents and the requirement to consider whether an order is necessary, the ancient common law principle,

now enshrined in Article 42A, should require a court to consider the best interests of the child.

38. Additionally, this case is important and as a precedent it carries the potential to bring further cases before the High Court in the

context of a procedural dispute. Finally, without the chance to analyse s. 23 of the 1991 Act, the High Court in future might have

been left floundering in the exceptionally rare cases that might potentially justify such an application in simply making a nullifying order

with nothing to replace it in aid of the welfare of children.

39. The hearing of this case was thus amply justified even though the immediate circumstances were spent.

Result

40. This judgment dissents only from the judgment of MacMenamin J for the majority on the question of whether the applicants for

habeas corpus had proven that there had been a complete failure of jurisdiction by the District Court due to the procedural error. It

follows that the appeal from the order of the High Court granting habeas corpus should be allowed.

41. Finally, and concurring with the majority, habeas corpus applications in child care and custody cases are not to be encouraged. In

the event that matters are not ready to proceed and in the event that the applicant consents to an adjournment but the District

Court having read all the papers considers that the children are in danger, then evidence can be called which may justify the making

of an emergency care order on an application by the Child and Family Agency. It was the failure to prove that these children were not

in such danger when the District Court made its determination that required this dissent, which is essentially one as to the failure of

the mother and father to prove that the judge dealing with the case of these children at first instance was so much in error as to be

a failure of jurisdiction.