District Court refuses adjournment of care order proceedings pending criminal trial to protect children's welfare.

[2015] IEDC 14

AN CHUIRT DUICHE THE DISTRICT COURT

CHILD AND FAMILY AGENCY

APPLICANT

-ANd-

C

RESPONDENT

In the matter of Child A and Child B

[Note: This version of the original decision delivered is PREPARED for THE PURPOSE OF Publication. Any changes from to

the original are intended only to be as to form and not as to substance, AND ARE for the purpose of reducing the

possibility of identification of the children.]

Background

1. These proceedings concern children Child A and Child B.

2. Child A and Child B are children of C.

3. Child A and Child B have been in the care of the Child and Family Agency for well over a year, on foot of the initial interim care

order and extensions of it granted by the Court on application by the Child and Family Agency, under section 17 of the Child Care Act

1991 [hereinafter referred to as the 1991 Act]. Section 17 provides:

17.—(1) Where a justice of the District Court is satisfied on the application of the Child and Family Agency that—

(a) an application for a care order in respect of the child has been or is about to be made (whether or not an

emergency care order is in force), and

(b) there is reasonable cause to believe that any of the circumstances mentioned at paragraph (a), (b) or (c) of

section 18(1) exists or has existed with respect to the child and that it is necessary for the protection of the

child’s health or welfare that he be placed or maintained in the care of the Agency pending the determination of

the application for the care order, the justice may make an order to be known and in this Act referred to as an

“interim care order”.

(2) An interim care order shall require that the child named in the order be placed or maintained in the care of the Child

and Family Agency—

(a) for a period not exceeding twenty-nine days, or

(b) where the Child and Family Agency and the parent having custody of the child or person acting in loco parentis

consent, for a period exceeding twenty-nine days, and an extension or extensions of any such period may be

granted (with the consent, where an extension is to exceed twenty-nine days, of the persons specified in

paragraph (b)) on the application of any of the parties if the justice is satisfied that grounds for the making of an

interim care order continue to exist with respect to the child.

(3)...

(4) Where an interim care order is made, the justice may order that any directions given under subsection (7) of section

13 may remain in force subject to such variations, if any, as he may see fit to make or the justice may give directions

in relation to any of the matters mentioned in the said subsection and the provisions of that section shall apply with any

necessary modifications.]

4. The Child and Family Agency has applied under section 18 of the 1991 Act for “full” care orders in respect of each child, to their

respective 18th birthdays (the section 18 proceedings). Section 18 provides:

18.—(1) Where, on the application of the Child and Family Agency with respect to a child, the Court is satisfied that—

(a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or

(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or

(c)the child’s health, development or welfare is likely to be avoidably impaired or neglected, and that the child

requires care or protection which he is unlikely to receive unless the Court makes an order under this section, the

Court may make an order (in this Act referred to as a “care order”) in respect of the child.

(2)A care order shall commit the child to the care of the Child and Family Agency for so long as he remains a child or for

such shorter period as the Court may determine and, in such case, the Court may, of its own motion or on the

application of any person, extend the operation of the order if the Court is satisfied that grounds for the making of a

care order continue to exist with respect to the child.

(3)Where a care order is in force, the Child and Family Agency shall—

(a) have the like control over the child as if it were his parent; and

(b) do what is reasonable (subject to the provisions of this Act) in all the circumstances of the case for the

purpose of safeguarding or promoting the child’s health, development or welfare; and shall have, in particular, the

authority to—

(i) decide the type of care to be provided for the child under section 36;

(ii) give consent to any necessary medical or psychiatric examination, treatment or assessment with

respect to the child; and

(iii) give consent to the issue of a passport to the child or to the provision of passport facilities for

him, to enable him to travel abroad for a limited period.

(4) Any consent given by the Child and Family Agency in accordance with this section shall be sufficient authority for the

carrying out of a medical or psychiatric examination or assessment, the provision of medical or psychiatric treatment,

the issue of a passport or the provision of passport facilities, as the case may be.

(5)…

(6)...

(7)…

(8)…

5. C has been charged with a number of offences of a sexual nature (the criminal charges). The criminal charges arise from allegations

made by Child A, in respect of which there has been a Garda investigation including interviews of Child A. The criminal charges and

the section 18 proceedings both concern the same set of serious allegations made against C by Child A. The allegations are denied by

C. 6. The section 18 proceedings were first listed for hearing some months ago (the first hearing date). C applied to this court for an

adjournment (the first adjournment application) of the first hearing date, apparently on general grounds that did not include the

grounds of the present application. The first adjournment application was refused.

7. Within weeks of the refusal of the first adjournment application, and prior to the first hearing date, C renewed the application for

adjournment (the second adjournment application). The principal basis of the second adjournment application was that in the

interests of fair procedures and in accordance with the State (D and D) V Groarke 1990 IR 305, C required sight of recordings of

interviews of Child A by the Gardaí and other Agencies, which had not up to that date been made available to C. The Court granted

the second adjournment application. The Court then set new hearing dates for the section 18 proceedings, (the second hearing date)

The Court stated that such adjournment was “peremptory” against C.

8. Within days of granting the second adjournment application, the Court made orders directing the release to C of recordings of the

relevant interviews of Child A, under strict conditions set down in the orders.

9. Some months later, C applied for further adjournment of the section 18 proceedings herein (the third adjournment application). The

Court invited and received written submissions from the parties and the Guardian Ad Litem in respect of that application. The Court

also heard oral submissions.

10. In the third adjournment application, C advanced two grounds.

11. One ground was essentially an extension of “fair procedure” issues previously raised in the second adjournment application, in

circumstances where there was considerable delay in furnishing to C of and/or receipt by C of recordings of the relevant interviews of

Child A in accordance with the orders made. Whatever the reason may have been for such delay, it was not due to C. I was satisfied

that it was necessary in the interests of fair procedures to grant a further adjournment of the section 18 proceedings on this ground,

for sufficient time as reasonable to enable C to instruct an expert or experts if C wishes to do so (and C does wish to do so) in

respect of issues arising from the recordings of the interviews that C had but recently received. I have given reasons to the parties in

an oral decision regarding this ground, and I do not propose to deal with that aspect of the third adjournment application any further

herein.

12. The other ground for the third adjournment application is C’s claim that infringement of C’s constitutional family rights and/or

constitutional right not to incriminate oneself would occur if the section 18 proceedings were to be heard prior to the conclusion of

C’s trial on the criminal charges. On this latter ground, C applies for adjournment of the section 18 proceedings to a date after the

conclusion of the criminal trial. The date has been set for C’s trial in the on the criminal charges, that date is more that 12 months

after the third adjournment application was initiated.

13. C has stated that C would consent to an interim care order being made by the Court for a period of one year, essentially on the

basis that C is currently incarcerated and therefore perforce unable to care for the children. As I understand it, C would not in that

context concede that any other ground for the making of an interim care order exists. While not explicitly stated, I understand this

“offer” is intended to extend to the end of C’s trial (as currently listed). I am unclear as to whether it is intended to extend to any

delay in the occurrence or conclusion of the trial, or the period in which any appeal might be taken or concluded. I am also not clear

whether it extends beyond any date on which bail might be granted.

Summary of submissions

14. C submits that in the section 18 proceedings

“The … family … enjoys constitutional family rights, which are described by Article 41 of the Constitution of Ireland as

‘inalienable and imprescriptible’ and ‘antecedent and superior to all positive law’. These constitutional family rights are

directly at issue in child care proceedings [in this regard C refers to North Western Health Board v HW [2001] 3 IR

622)”.]

C further submits that the application of the Child and Family Agency pursuant to section 18 of the 1991 Act is an application to

invoke a statutory mechanism to sever those family rights.

15. C submits that in the criminal proceedings C has a well-established constitutional right to protection against self-incrimination. C

refers to Heaney v Ireland [1994] 3 IR 593 (HC) and [1996] 1 IR 580 (SC).

16. C submits that to ensure the protection of C’s own and C’s family’s constitutional rights in the section 18 proceedings, C will

“almost certainly need to give evidence in the section 18 application” [para 25 C’s submissions]. C submits that if the section 18

proceedings proceed to hearing prior to the trial on the criminal charges, C is faced with a choice between two sets of constitutional

rights: C can give up the constitutional “family” rights (or at any rate C’s opportunity to vindicate same by way of giving evidence in

the section 18 proceedings) in order fully to enjoy C’s constitutional privilege against self-incrimination; or C can be left open to self-

incrimination on cross-examination in giving evidence in order to attempt to protect C’s constitutional family rights.

17. C furthermore submits that if C were to adopt the latter course, there would be a clear interference with C’s constitutional right

against self-incrimination. C submits that although the section 18 proceedings are in camera, there is no ban on matters raised in the

section 18 proceedings being admissible in criminal proceedings. C maintains that notwithstanding the in camera rule, there has been,

and continues to be, what C describes as “ongoing collaboration” between the Child and Family Agency and the Gardaí in this matter.

C submits that the investigating Garda has already given evidence in the within [1991 Act] proceedings and has attended at court on

numerous occasions. C maintains that C has no reason to suspect that any matters raised by C in C’s own defence in the section 18

proceedings would not be conveyed to the Gardaí, and that C has no direct legal protection to ensure that this will not occur.

18. C submits that the making of an interim care order in respect of the children until the end of the criminal trial (or whatever is the

effect of the offer set out above) will provide for the care of the children while avoiding C being placed in the invidious position of

having to choose between one or other of C’s identified constitutional rights. Put another way, if the section 18 proceedings are

adjourned on the basis suggested by C, there is no interference with any of C’s constitutional rights.

19. C further submits that it is necessary for the Courts to harmonise constitutional rights so that all constitutional rights are

vindicated wherever possible. C submits that C has put forward a way in which any conflict between the identified constitutional is

resolved i.e. by this court adjourning the section 18 proceedings pending the criminal trial while the children remain in the Child and

Family Agency’s care under an interim care order. This would avoid the occurrence of the occasion on which C would have to choose

one constitutional right instead of another; rather it would preserve all of C’s constitutional rights for C’s full enjoyment.

20. In oral submissions, C asserted that if the Court were not to accede to the third application to adjourn, then the infringement of

C’s constitutional rights arising from forcing C to choose between C’s identified constitutional rights would have to be justified by

some other countervailing constitutional principle. C submits that no such countervailing constitutional principle has been identified. C

submits that such other constitutional principle cannot be a necessity that the children be placed or maintained in the care of the

Child and Family Agency, because they are already in the care of the Child and Family Agency, and because C has conceded that

they will remain there under an interim care order pending the criminal trial, and because as long as C is incarcerated the grounds

exist for an interim care order in any event.

21. The Guardian Ad Litem in submissions identifies constitutional rights of the children. The Guardian Ad Litem refers to G –v- An

Bord Uchtála (1980) (I.R. 32), as authority for the proposition that that a child has a natural right to have his/her welfare

safeguarded, which right is also a personal right within the meaning of Article 40.3 of the Constitution. The Guardian Ad Litem further

refers to North Western Health Board –v-HW and CW (2001) (3 I.R.622), where Denham J said at page 726 (as I understand it in the

context of constitutional rights), that “In relation to the child, the fundamental principle is the welfare of the child.”

22. Both the Child and Family Agency and the Guardian Ad Litem submitted that it is in the interests of the welfare of children that

the section 18 proceedings are concluded as soon as possible. In general terms, it is asserted that the children are in need of

“certainty”.

23. In respect of what the Guardian Ad Litem regards as the overall welfare needs of the children, the Guardian Ad Litem submitted

more particularly that “the children need a global decision on where they are at in their care situation at this current point in time.

There needs to be a finding of fact on the balance of probabilities relative to this current temporal point in their lives” and “this

finding of fact, either way, will enable the professionals tasked with their care, to make progress in advancing their respective

therapeutic journeys whereas the current situation is interim and temporary at best.”

24. In submissions the Guardian Ad Litem refers to the constitutional rights of the children “Child A and Child B’s own personal

constitutional rights [should be] in the paramount position is [sic] submitted that [Child A and Child B] have a legal and moral right to

the speedy resolution of their care proceedings on the facts of this case.” The Guardian Ad Litem refers to Mr Justice O’Flaherty’s

comments on the balance of rights in Southern Health Board v C.H. [1996] 2 IR at page 238, “the judge is in essence required to

inquire as to what is in the best interests of the child. It is true, of course, that the rights of the father must be safeguarded, as far

as practicable, consistent with discharging that primary obligation. But when the consequences of any encroachment on the

respective rights is considered, it is easy to comprehend that the child's welfare must always be of far graver concern to the Court.

We must, as judges, always harken to the constitutional command which mandates, as prime consideration, the interests of the

child in any legal proceedings.”

25. With regard to the “offer” of a one year interim order on consent, the Guardian Ad Litem submits that “the suggestion that a one-

year interim care order is granted pending the resolution of the criminal proceedings, with respect, only serves to vindicate the

rights of one person - C. This, without any finding of fact, confers in essence a status of circumstantial care over the children. Their

care plans will reflect the fact that the rationale for their care status is merely because of a geographical inability of C to care for

them – because C is in prison. If there are threshold actions that precipitated the current care situation, then it is only fair on the

children that the nature of those threshold acts (if eventually proven on the balance of probabilities) are made a part of their care

plans so that the professionals can plan for them in the most effective and child-centred manner. On the flip side, if they are not

proven at the care order hearing and the Court opts for a future phased return of one or both of the children, the professionals and

C can plan for their care with the matrix of care planning that that result will necessitate.”

26. The Guardian Ad Litem also submits that there is no guarantee that the trial on the criminal charges will occur within the current

time frame, that even if it does there may be appeals, and that therefore the date of completion of the criminal trial is unknown.

27. In reply to the contentions that the children need certainty and/or early disposal of the section 18 proceedings, C made detailed

written submissions as follows:

It has been submitted to the Court orally by the [Child and Family Agency] and the [Guardian Ad Litem] that it is necessary to

proceed with the full care order application such that the children can have certainty as to their situation. It is respectfully

submitted that a full care order made after a contested hearing … would provide no more certainty for the children than an interim

care order until the conclusion of the criminal proceedings. If a section 18 order were to be made, it remains open to C to apply to

vary or vacate that order pursuant to section 22 of the 1991 Act. In the event that C were acquitted, C would make such an

application in early course.

28. Section 22 of the 1991 Act provides:

22.—The Court, of its own motion or on the application of any person, may—

(a) vary or discharge a care order or a supervision order,

(b) vary or discharge any condition or direction attaching to the order, or

(c) in the case of a care order, discharge the care order and make a supervision order in respect of the child.]

29. C’s submissions continue “It is also respectfully submitted that the proposal that hearing the section 18 application is necessary

for security of placement for the children misunderstands the legal position. The current foster carers are under no legal obligation

to continue to care for either child and could end the placement at a few days’ notice. This has already occurred [in this case] in

respect of [one placement] and such a notice was given in respect of [another placement] but was subsequently withdrawn. The

position as regards to a long-term care order is therefore as follows: If C is acquitted, there will be a hearing on whether the

children should remain in care until the age of eighteen after the criminal trial. This will either be an adjourned section 18 hearing or

a section 22 hearing. If C is convicted, then the children will almost certainly remain in care until the age of eighteen in any event,

whether the section 18 application proceeds [prior to the criminal trial] or not. The determining factor is the outcome of the

criminal trial, not whether the section 18 application proceeds. Although the position as regards the long-term certainty of a care

order is unaffected by whether [the section 18 proceedings] hearing proceeds [prior to the criminal trial], the same cannot be said

of C’s constitutional rights. They will be deeply affected by proceeding with the section 18 application [prior to the criminal trial].”

30. In oral submissions, C refuted the suggestion that “the offer” would involve what the Guardian Ad Litem termed “a status of

circumstantial care over the children”. C further submitted that the Court has no statutory role in making “findings of fact” – that in

so far as the Court is engaged in “findings of fact” this is an offshoot of the duty to give reasons: that it is not necessary that such

findings be available to the Child and Family Agency in order for the Child and Family Agency to carry out its statutory duty and plan;

that the statutory duty to children is to provide such care as is required: that the Court has a role in supervising the duties of Child

and Family Agency but it is not up to court to exercise those duties: that notwithstanding the provisions of section 47 of the 1991

Act, if a child requires a therapy which the Child and Family Agency does not provide because the hearing of the section 18

proceedings has not occurred, the Child and Family Agency is failing in its duty.

Decision

31. Where there are constitutional rights in issue, the Court must seek to harmonise those rights, in order to vindicate all of the rights

if possible. If it is not possible to do so, then the Court must weigh the rights and seek to achieve the appropriate balance. Before

doing so, the Court must identify the constitutional rights involved.

32. As submitted by C, C and C’s family enjoy constitutional rights under Article 41 of the Constitution.

33. As submitted by C, C enjoys a constitutional right to protection against self-incrimination as set out in Heaney v Ireland [1994] 3

IR 593 (HC) and [1996] 1 IR 580 (SC). The right is described by Costello J at [1994] 3 IR 603 as follows:

“When a person is arrested as a suspect and subsequently charged with an offence two discrete immunities are conferred by the

common law. The common law recognises (a) the immunity against self-incrimination of a suspect, and (b) the immunity against

self-incrimination of an accused person during his trial. The suspect's immunity was developed in order to avoid the risk of untrue

confessions being obtained from a person whilst in police custody. The law does not prohibit a suspect from confessing to a crime -

nor does it prohibit the questioning of a suspect in custody. It provides, however, that a suspect should not be required to answer

questions on pain of punishment should he not wish to do so; that he is free to remain silent should he so choose and that he should

be informed of his right so to do. An accused's immunity was developed from the objections taken by the common law courts to the

abuses arising from court procedures involving the judicial interrogation of accused persons. As a result an accused cannot be

required to give evidence at his own trial or be compelled to adduce evidence on his own behalf and is entitled to remain silent

during it, and not to be questioned either by the prosecution or the presiding judge. The common law immunity against self-

incrimination also exists in favour of a person who is subject to interrogation by a person in authority other than a police officer.”

34. In the section 18 proceedings:

• C is not to be “required to answer questions on pain of punishment should C not wish to do so”.

• Nor is C to “be required to give evidence at C’s own trial or be compelled to adduce evidence on C’s own behalf”,

• Nothing in the proceedings in this court can deprive C of the right “to remain silent during [C’s own trial], and not to be

questioned [at C’s own trial] either by the prosecution or the presiding judge”.

• In so far as it may be relevant, C in the s 18 proceedings will not be “subject to interrogation by a person in authority

other than a police officer”

35. The section 18 proceedings are entirely separate, stand alone court proceedings. The section 18 proceedings form no part of the

criminal process or criminal proceedings. If there were no criminal charges, section 18 proceedings could be brought. If the criminal

charges were dropped or withdrawn, the section 18 proceedings would be unaffected. I am of the view, that absent the criminal

charges, C would still be able to refuse to answer questions in the section 18 proceedings on the basis that to do so might be self

incriminating. C’s rights against self incrimination would be vindicated by allowing C to decline to answer such questions without pain

of penalty. This vindication of C’s constitutional right against self incrimination is independent of any charges or criminal trial.

36. It appears that, although C can refuse to answer questions in the section 18 proceedings on the basis that to do so might be self

incriminating, C nevertheless seeks to avoid the occurrence of the occasion on which C would have to do so. This, it appears to me is

the essence of the submission

“It is therefore the case that if C wishes to defend the child care proceedings adequately and to ensure the protection of the C

family’s constitutional rights C will almost certainly need to give evidence in the section 18 application. However, if C were to do so,

there would be a clear interference with C’s constitutional right against self-incrimination”.

37. O’Flaherty J, in Heaney v Ireland [1996] 1 IR at page 586 states:

“Where a person is totally innocent of any wrongdoing as regards his movements, it would require a strong attachment to one's

apparent constitutional rights not to give such an account [of his movements] when asked pursuant to statutory requirement. So

the Court holds that the matter in debate here can more properly be approached as an encroachment against the right not to have

to say anything that might afford evidence that is self-incriminating.

In the instant case, I would adapt this to say that if C is totally innocent of any wrongdoing as regards the allegations made, it would

require a strong attachment to C’s apparent constitutional rights not to address those allegations in the context of a welfare hearing

concerning C’s children. Thus the matter in debate here can more properly be approached as an encroachment against the right not

to have to say anything that might afford evidence that is self-incriminating. It is C’s choice as to whether C says anything in the

section 18 proceedings. C does not have to say anything that might afford evidence that is self-incriminating (unlike the situation in

Heaney v Ireland where the Supreme Court ultimately held that the impugned statutory provision that required a suspect to account

for his movements on pain of imprisonment was constitutional).

38. C submits that matters raised by C in C’s own defence in the section 18 proceedings may be conveyed to the Gardaí and C has no

direct legal protection to ensure that this will not occur. In written and oral submissions reference was made to statutory provisions in

the UK and the efficacy or otherwise of such provisions in achieving their (apparent) objective. No such legislation exists in this

jurisdiction.

39. It would be a matter for the trial judge in the criminal proceedings to rule on any complaint that might be made regarding any

evidence that may be given or be proposed to be given at the criminal trial.

40. This court in conducting the section 18 proceedings in accordance with the 1991 Act will have regard to section 29 of the 1991

Act.

41. The children have constitutional rights, which must also be considered. In North Western Health Board v HW [2001] 3 IR 622

(already referred to by the Guardian Ad Litem), a case which involved a balancing of constitutional rights of the family, the parents

and the children. Denham J (as she then was) stated at page 718 that “the constitutional principles applicable are those to be found

in Article 40.1, Article 41 and Article 42.5 of the Constitution of Ireland. These should be construed harmoniously. Thus, the child has

personal rights: Article 40.1 of the Constitution of Ireland. The State has a duty to respect, and, as far as practicable, by its laws to

defend and vindicate these rights. The State has a duty to vindicate the life and person of the child. Thus, the Guardianship of

Infants Act, 1964 and the 1991 Act advanced the concept of the welfare of the child as the first and paramount consideration.”

42. In the same case, at page 722 she stated that the “responsibility for children rests with their parents except in exceptional

circumstances. In assessing whether State intervention is necessary the fundamental principle is that the welfare of the child is

paramount. However, part of the analysis of the welfare of the child is the wider picture of the place of the child in the family; his or

her right to be part of that unit. In such a unit the dynamics of relationships are sensitive and important and should be upheld when

possible as it is usually to a child's benefit to be part of the family unit.”

43. Also, in G v An Bord Uchtala [1980] 1 IR 32, at the headnote on page 33, held by Walsh J that “the plaintiff's child had a natural

right to have her welfare safeguarded, which right was a personal right within the meaning of Article 40, section 3, of the

Constitution ” and held by Henchy J that “the plaintiff's child had a natural right to have her welfare safeguarded, which right was a

personal right within the meaning of Article 40, section 3, of the Constitution.”

44. I am satisfied that the children in these proceedings have a constitutional right to have their welfare safeguarded, and that the

fundamental principal guiding any decision in dealing with any balance of constitutional rights in issue is that the welfare of the

children is paramount.

45. C submits that the application of the Child and Family Agency pursuant to section 18 of the 1991 Act is an application to invoke a

statutory mechanism to sever those family rights. I do not think this is entirely accurate. Rather, as stated by Denham J stated at

page 711 of North Western Health Board v HW [2001] 3 IR 622 “the 1991 Act simply provides a mechanism whereby the State

undertakes its obligations under Article 42.5.”

46. This case, in common with all cases under the 1991 Act, requires this court to decide whether interference by the state in the

family is warranted. The fundamental decision to be made in the section 18 proceedings is whether the children should be in the care

of the Child and Family Agency, on any of the grounds set out in section 18 of the 1991 Act. If following the section 18 inquiry, it is

found that none of those grounds exist, then the children should not be in the care of the Child and Family Agency under section 18

of the 1991 Act. If, on the other hand, any of the grounds set out in section 18 of the 1991 Act exist, then it is necessary in the

interests of the welfare of the children for the Court to decide what, if any, order should be made under the 1991 Act, and to

determine the length of the order to be made. This Court is required to make the decision as to whether any of the grounds exist. It

is accepted by all that the burden of proof lies with the Child and Family Agency, and that the standard of proof is the balance of

probabilities. I do not accept at all C’s submission that culminates in the assertion that “The determining factor is the outcome of the

criminal trial, not whether the section 18 application proceeds ….” The determining factor of all aspects of the section 18

proceedings is what is decided in and by this Court.

47. I identify the constitutional rights involved as:

a. C’s rights under the constitution as a parent and member of a family, in particular to vindicate C’s and C’s family’s rights

by giving evidence in the section 18 proceedings,

b. C’s right under the constitution not to have to say anything that might afford evidence that is self-incriminating. and

c. the children’s rights under the constitution as children and members of a family including their right to have their

welfare safeguarded and to have their welfare considered to be paramount.

48. C recognises that this court will have to make a decision in the section 18 proceedings but submits that it should be postponed to

after the conclusion of the criminal trial, so that C can fully enjoy all of C’s identified constitutional rights. C maintains that such rights

as the children may have (C does not specifically acknowledge that any rights of a constitutional nature arise) would be vindicated

(or at any rate sufficiently vindicated in the balance against C’s rights) by adjourning the section 18 proceedings on the basis

suggested by C.

49. Ultimately the issue that arises, at least from C’s point of view, is a timing issue. All of C’s constitutional rights can be preserved if

the section 18 application is adjourned pending the criminal trial. C’s rights, C claims, will otherwise be detrimentally affected, in that

C will be forced to choose to enjoy one or the other but will be unable to enjoy both.

50. The question then is whether the children’s rights are such that they outweigh C’s rights. In the context of their welfare being the

paramount consideration, is it necessary to proceed with the section 18 proceedings prior to the conclusion of the criminal

proceedings, with the consequent affect on C’s rights?

51. In North Western Health Board v HW [2001] 3 IR 622, under the heading “constitutional test” at page 725, Denham J stated that

“a constitutional test has to be applied. In this case the test involves the weighing of all the circumstances, including parental

responsibility, parental decisions, the child's personal rights, and the rights of all persons involved to and in the family, to determine

in these circumstances what is in the best interests of the child………It is complex and difficult to weight these different factors one

against the other……….. they are all profoundly important factors. There is no easy weighing of the scales. The ultimate decision is

one to be grounded on fundamental constitutional principles...… When assessing the welfare of a child - the fundamental concept

when analysing the position of a child - complex social, political, educational and health rights of the child in and to his family are

important….…In relation to the child, the fundamental principle is the welfare of the child. The welfare of the child includes religious,

moral, intellectual, physical and social welfare. These elements must be analysed in light of the facts relating to the child and the

family in issue. The Court has a constitutional duty to protect the life or health of the child from serious threat and the Court has a

constitutional duty to protect the family. A just and constitutional balance has to be sought.”

While this constitutional test was to some extent expressed in terms of the facts of that case, I believe that it provides guidance as

to the test to be applied and the balance sought to be achieved in the instant case.

52. With regard to the issue of “certainty”, that is such certainty as may be achieved for the children by the conclusion of the

section 18 proceedings, C is correct to say that even if this court proceeds with the section 18 proceedings, and makes a care order,

such order remains subject to application for variation or discharge under section 22 of the 1991 Act. Furthermore, and perhaps more

importantly, the making of an order under section 18 does not relieve the Child and Family Agency of its obligation to continue to

explore the possibility of re-unification of the family, an issue which must be considered at the very least at each statutory child in

care review held. It is also true that there can be no absolute certainty about placement – it is regrettably true that placements

break down. None of the above is unique to this case; indeed all of the above can be said of every case of application for and

granting of a care order under section 18.

53. The real issue is not however the achievement of some unattainable absolute certainty, rather it is what is identified by the

Guardian Ad Litem as being in the best interests of the children (as set out in his submissions and referred to above), and in particular

“if there are threshold actions that precipitated the current care situation, then it is only fair on the children that the nature of

those threshold acts (if eventually proven on the balance of probabilities) are made a part of their care plans so that the

professionals can plan for them in the most effective and child-centred manner.” If they are not proven at the care order hearing,

the professionals and C can plan for their care with the matrix of care planning that that result will necessitate. I am satisfied that

what is set out above encapsulates how best to address the minimisation of the possibility of harm including future harm to the

children: i.e. by appropriate planning for their care in the context of a court finding that the threshold for a care order exists, or by

appropriate planning in the context of the threshold for a care order not being reached. That is where the welfare of the children lies.

That is how the welfare of the children is safeguarded.

54. Can the children’s right to have their welfare safeguarded and to have their welfare considered to be paramount be vindicated in

the scenario where the “offer” of a one year (or to conclusion of the criminal trial) interim care order is accepted, and the section 18

proceedings are adjourned until the criminal trial is completed?

55. It is generally accepted, and I accept, that delay in proceedings of this type is inimical to the interests of the children. Delay

occurs. Some delay is purposive, for example for the purpose of assessment and/or programmes that may allow for the possibility of

early reunification, or for clearer and more comprehensive evidence to be available for hearing. Some delay is regrettable but

necessary, such as the delays that have already occurred in this case to facilitate fair procedures. Some delay is simply regrettable,

such as listing delays. Some delay in regrettable and unnecessary – appointments missed, assessments not completed. But delay

should be avoided where possible.

56. C maintains that the delay that would be caused by the adjournment of the section 18 proceedings pending completion of the

criminal trial is necessary to preserve C’s constitutional rights.

57. C further maintains that the children’s care needs would be met in the care of the Child and Family Agency subject to an interim

care order, and that the duties of the Child and Family Agency in relation to the children and their care are the same regardless of the

nature of the order. I do not accept C’s submissions in this regard. There is a very considerable difference between the order

proposed by C which would be under section 17 of the 1991 Act, and an order under section 18 of the 1991 Act as sought by the

Child and Family Agency. If the circumstances warrant an order under section 18, then the provisions of section 18 (3) apply, viz

(3)Where a care order is in force, the Child and Family Agency shall—

(a) have the like control over the child as if it were his parent; and

(b) do what is reasonable (subject to the provisions of this Act) in all the circumstances of the case for the

purpose of safeguarding or promoting the child’s health, development or welfare; and shall have, in particular, the

authority to—

(i) decide the type of care to be provided for the child under section 36;

(ii) give consent to any necessary medical or psychiatric examination, treatment or assessment with

respect to the child; and

(iii) give consent to the issue of a passport to the child or to the provision of passport facilities for

him, to enable him to travel abroad for a limited period.

C maintains that C will facilitate and support all necessary care decisions, therapy etc that the children require, and support their

care in every way. However if the threshold for an order under section 18 is reached, and the Court is satisfied that it should exercise

its discretion to make a care order, it is necessary in the interests of the welfare of the child that the Child and Family Agency have

the responsibilities and rights set out in section 18 (3), which it does not have under section 17.

58. There is nothing to be gained for the children in delaying the determination of the care order pending the criminal trial. It is not in

the interests of their welfare that that determination be delayed for that time and purpose.

59. In seeking a just and constitutional balance, I have considered the circumstances of the case, and the rights of all persons

involved in the family, to determine in these circumstances what is in the best interests of the children. On balancing the rights

involved, I am satisfied in this case that the necessity to vindicate the rights of the children including their right to have their welfare

safeguarded in the fullest sense outweighs C’s right not to have to say anything that might afford evidence that is self-incriminating.

I am satisfied that any resultant interference with C’s rights is proportionate. I am satisfied that to adjourn the section 18

proceedings pending the completion of the criminal trial would disproportionately affect the rights of the children.

60. I refuse the application for adjournment of the section 18 proceedings pending the completion of the criminal trial.

Brendan Toale

Judge of the District Court

Note: This case was heard, with judgement reserved, prior to the enactment of Article 42A of the Constitution of Ireland.