District Court lacks jurisdiction to review Child and Family Agency's decision to withdraw care proceedings under the 1991 Act.

[2016] IEDC 11

AN CHUIRT DUICHE THE DISTRICT COURT

THE CHILD AND FAMILY AGENCY

APPLICANT

-AND-

M

-and -

J

Respondents

In the matter of C and D, children

[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.]

1. A, B, C and D are children of mother and father. All four children were initially received into the care of the Child and Family Agency

in 2012, on foot of interim care orders. During 2013, C and D returned to the care of their parents, subject to a supervision order

under section 19 of the Child Care Act [hereinafter referred to as the 1991 Act]. The following month, A and B were made the subject

of care orders under section 18 of the 1991 Act, for a period of 3 years and remain in the care of the Child and Family Agency.

2. In 2014, the Child and Family Agency issued applications under section 18 (1) of the Child Care Act 1991, for care orders in respect

of C and D.

3. On the same date, the Child and Family Agency issued applications under section 17 (1) of the 1991 Act for interim care orders in

respect of C and D, which were granted. Since that date, C and D have remained in the care of the Child and Family Agency on foot

of the original order and extensions thereof, until today.

4. The Guardian Ad Litem was appointed pursuant to section 26 Child Care Act to C and D, she has remained so appointed since that

date.

5. KD, who had previously been Guardian Ad Litem to C and D along with their siblings A and B, was permitted by order of the Court,

in the interests of A and B to attend at all hearings in respect of C and D, and he has done so.

6. The Child and Family Agency, mother, father, the Guardian Ad Litem, and KD, have been separately legally represented throughout.

7. The above brief summary does not in any way reflect the enormous amount of contention and litigation that has occurred in this

complex case. It is not necessary for the purposes of this application to narrate all of the various applications made. Suffice it to say

that following the expenditure of a very considerable amount of court time and state resources, the section 18 (1) application issued

in 2014 was ultimately listed for hearing, to commence in early 2016.

8. This Court has heard evidence over a considerable period of time, including viewing of DVD recordings of interviews of some of the

children and including hearing at length from several expert witnesses. The case was further listed for additional days, which were not

taken up. The hearing has again involved the expenditure of a very considerable amount of court time and state resources. The

evidence of the Child and Family Agency (that is the evidence that the Child and Family Agency had indicated that it had intended to

call in support of its applications) has not been completed. It is anticipated that if it were to complete its evidence, then that would

take several more days. The respondents would then be entitled to call their evidence, and the Guardian Ad Litem would give

evidence. This is further complicated by the issue of whether in the context of the application proceeding, there would be a

requirement for evidence from a child by remote link, and the possibility of the court requiring additional witnesses to be called. All of

this would likely take some 5 to 10 days.

9. As the evidence is incomplete, the Court would not at present be able to make any findings of fact.

10. Since the commencement in 2016 of the substantive hearing of the section 18 (1) application, and without completing its

evidence, the Child and Family Agency has made several separate applications to adjourn the hearing of the case. The Court refused

the first 2 applications, but perforce the application did not actually proceed as no witnesses were produced. The Court granted the

third application, which was consented to by the respondents and the Guardian Ad Litem.

11. The case was then listed for summer 2016 for further hearing. On that date, the Child and Family Agency applied again to adjourn

the application. The Court refused that application. Forthwith upon the Court delivering its decision to refuse that adjournment

application, counsel for the Child and Family Agency indicated that she had instructions that the Child and Family Agency wished to

withdraw its application. One has to wonder as to the basis on which an application for adjournment was made in circumstances

where the Child and Family Agency now argue [and it is intrinsic to this decision] that it had decided not to pursue the application.

12. The issue then arose as to whether the Court had jurisdiction to refuse an application by the Child and Family Agency to withdraw

the application, and how such a jurisdiction might be exercised. The Court invited submissions, and submissions were received from

the Child and Family Agency, the respondent parents (jointly), the Guardian Ad Litem, and KD as Guardian Ad Litem to A and B. The

Court indicated that it would first consider whether it had jurisdiction to refuse to allow the Child and Family Agency to withdraw the

application. The matter was heard in summer 2016, when the Court heard oral submissions, and decision reserved.

13. I have considered all of the submissions made.

14. The respondent parents do not oppose the withdrawal of the application. On their submissions I find that they are ambivalent as

to whether the Court has any jurisdiction to refuse to permit the withdrawal of the application, but argue that if there is any such

jurisdiction it should not be exercised.

15. The Guardian Ad Litem submits that the Court has jurisdiction to refuse to permit the withdrawal of the application, and reserves

further argument as to how such jurisdiction should be exercised. KD supports the Guardian Ad Litem.

16. Section 16 of the 1991 Act provides as follows:

“16.—Where it appears to the Child and Family Agency that a child requires care or protection which he is unlikely to

receive unless a court makes a care order or a supervision order in respect of him, it shall be the duty of the Agency to

make application for a care order or a supervision order, as it thinks fit.”

17. Section 16 of the 1991 Act sets out the duty of the Child and Family Agency to apply for a care order or a supervision order

“where it appears to the Child and Family Agency that a child requires care or protection which he is unlikely to receive unless a

court makes a care order or supervision order in respect of him”. I am satisfied that if it does not appear to the Child and Family

Agency that a child requires care or protection which he is unlikely to receive unless a court makes a care order or supervision order

in respect of him, then not alone does it not have a duty to apply for an order, it has a duty not to apply for an order.

18. I am also satisfied that if it did, at one time, “appear to the Child and Family Agency that a child requires care or protection

which he is unlikely to receive unless a court makes a care order or supervision order in respect of him”, and if the Child and Family

Agency has moved an application for such an order, but that at a later time it does not appear so to the Child and Family Agency,

then not alone does it not have a duty to apply for an order, it has a duty not to apply for an order, and included in that is a duty to

withdraw its application for an order.

19. The function of the Child and Family Agency in general is set out at section 3 of the 1991 Act, which provides at sub- section (1)

and (2):-

“3.—(1) It shall be a function of Child and Family Agency to promote the welfare of children who are not receiving

adequate care and protection.

(2) In the performance of this function, the Child and Family Agency shall—

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and

protection and co-ordinate information from all relevant sources relating to children;

(b) having regard to the rights and duties of parents, whether under the Constitution or otherwise—

(i) regard the welfare of the child as the first and paramount consideration, and

(ii) in so far as is practicable, give due consideration, having regard to his age and understanding, to

the wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own

family.

20. In carrying out its function, the Child and Family Agency must have regard to section 3(2) 1991 Act. Decisions of the Child and

Family Agency in pursuance of its duty under section 16 are a matter for the Child and Family Agency. This Court has no power to

review such decisions, regardless of the Court’s opinion of such decisions. The function of this Court is to decide on applications

brought by the Child and Family Agency in this Court. It is not the function of this Court to decide whether an application should be

brought.

21. Section 18 (1) of the 1991 Act provides as follows:

“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.”

22. Section 18 (1) sets out the jurisdiction of the Court, on an application by the Child and Family Agency under the section. That

jurisdiction is to exercise discretion to make an order or not, if the Court is satisfied on an application by the Child and Family Agency

that (a) or (b) or (c) has occurred or is likely to occur and that the child requires care or protection which he is unlikely to receive

unless the Court makes an order.

23. There is no provision in the 1991 Act (or otherwise) for any person other than the Child and Family Agency to apply to the Court

for an order under section 18 (1). The Court only has jurisdiction to make an order under section 18 (1) on the application of the Child

and Family Agency.

24. I have received a copy of the transcript (marked “draft”) of the judgement of the High Court in HSE v NC and EC dated 21

January 2008, where Mr Justice McMenamin was of the view that only the HSE, (now the Child and Family Agency) could institute

proceedings under section 18 (1). He contrasted this with other sections of the 1991 Act, including section 18 (2) and section 47,

which specify that applications for orders or directions under those sections may be made by persons other than the Child and Family

Agency. At page 14 (line 15) to page 15 (line9) as follows:-

“I pause here to draw a contrast here between the provisions of section 18 (1) and section 18 (2). Under section 18 (1)

the application is to be made by the Health Board. No other person is envisaged as being a person who may make an

[application]. Under sub section 2 it is provided that the Court may of its own motion or on the application of any person

extend the operation of the order of the Court if it is satisfied that the grounds for making a care order continue to exist

with respect to the child. Thus a clear dichotomy is established between the duties and functions of the Health Board on

the one hand and on the other the duties of the Court and any other person involved with the welfare of the child.

Indeed this dichotomy may be found in a number of sections proceeding through Part 4 of the Act. I find the same

distinction drawn in section 19, in section 20, in section 22, in section 23 and section 27. In section 19(7), sections 20,

22, 23, and 27, I find in the course of those sections reference to the phrase “the Court may of its own motion or on

the application of any person”. This is quite distinct from what is to be found at section 18 or indeed section 16 and 17.”

(I read the latter reference to section 18 as being to section 18 (1), given what is said in the first sentence of the quoted passage

about the contrast between section 18(1) and 18(2)).

25. I came to a similar conclusion in somewhat similar circumstances, except in respect of section 19(1) 1991 Act, in Health Service

Executive -v- EF & Anor (Supervision Order) [2012] IEDC 4 28/09/2010, where I said

“There are no … provisions in the Act in relation to application for a Supervision Order being made by any party other

than the HSE, or for the Court of its own motion to make or extend a supervision order. Given that the legislation is

quite specific (and different) in respect of the powers given to parties to apply and to the Court to act on its own

motion under sections 17, 18, and 19, I do not believe that section 47 can be used to attribute to the Court or other

parties the power to make application specifically reserved to the HSE, in particular a Supervision Order (or to direct

that such an order be applied for), however desirable it might that such application be made”.

In respect of the point in issue in this case, section 19 (1) is identical to section 18 (1).

26. Neither of the above cases is precisely “on point”, in that they do not concern withdrawal of a part heard application under

section 18 (1). In HSE v NC and EC, there were no proceedings in being to be withdrawn, rather there was a desire and/or purported

application under section 47 to extend care orders. In HSE v EF, the proceedings giving rise to an interim care order under section 17

had been completed, the interim care order had run its term, and no further application had been made. Nevertheless in each case,

the respective courts held that only the HSE/ Child and Family Agency could make the application for the section 18(1) or 19(1)

order.

27. It has been submitted that the Child and Family Agency made application either on the date it issued the section 18(1)

application, or at the very latest on the date on which the substantive hearing commenced, or at some date in between. It is

submitted that once the application is made (whatever the date), the Court is dealing with the case “on the application of the Child

and Family Agency”, and that the application then has an existence that is independent of the Child and Family Agency (the only

entity with locus to make the application), and that somehow, once started, the application no longer requires to be made or moved

by the Child and Family Agency. The Guardian Ad Litem in particular distinguished this case by virtue of the application having been

“made” by the Child and Family Agency, and being part heard.

28. I do not accept that the application can at any stage “stand alone”, without an applicant (i.e. the Child and Family Agency, the

only entity with locus to make the application) to move it. Put it another way, the application cannot be divorced from the applicant.

Albeit that the applicant seeks to withdraw the application at a very late stage, the application does not take on a life of its own.

29. The Guardian Ad Litem does not submit that she has locus to apply for an order under section 18 (1). She argues that the Court

has jurisdiction by virtue of the District Court Rules, and by virtue of Dublin Metropolitan District practice direction, to refuse to permit

the withdrawal of the application.

30. The Guardian Ad Litem in particular refers to Order 47B of the District Court Rules (the rules), the relevant parts of which provide

as follows:

Discontinuance or withdrawal of claim or part of claim

“(1) The claimant may:

(a) before receipt of the respondent's appearance and defence or defence; or

(b) after receipt of the respondent's appearance and defence or defence, but before taking any other step in the

proceedings (except any interlocutory application),

(i) wholly discontinue his claim against all or any of the respondents by written notice (Form 47B.01,

Schedule C) served on each respondent and filed with the Clerk; or

(ii) withdraw any part or parts of his alleged cause of action by written notice (Form 47B.01, Schedule

C) served on each respondent and filed with the Clerk.

(2) Where a claimant serves a notice under sub-rule (1), the claimant must pay the respondent's costs of the

proceedings or, if the claim is not wholly discontinued, the costs occasioned by the part of the alleged cause of action

withdrawn.

(3) …

(4) …

(5) …

(6) Save as provided in this Order, a claimant may not withdraw or discontinue a claim without the permission of the

Court.

(7) The Court may at the hearing or trial, on the claimant's application, order or permit the claim to be discontinued, or

any part of the alleged cause of action to be struck out, on such terms as to costs, and as to any other action and

otherwise as the Court considers just.”

31. The introduction of this Order post dates the above decisions.

32. On a first reading, Order 47B might strike one (and it did strike me) as being peculiar to civil proceedings in which there is pleading

such as appearance, defence etc. However, I note the following:

• Order 47B occurs in Part III of the rules, entitled “civil proceedings”.

In the rules, under “Interpretation of Terms”

• The term “civil proceedings” is defined as: “any proceedings which may be brought in the District Court which are not

criminal proceedings”.

• The term “claim” is defined as “includes cause of action or matter”.

• The term “claimant” is defined as “a person seeking a remedy in civil proceedings.

33. Proceedings under the 1991 Act, which clearly are public law proceedings, are clearly not criminal proceedings. They are,

therefore, “civil proceedings” for the purposes of the rules and in particular Order 47B. By virtue of the definitions of “claim” and

“claimant”, the matter of this application and the Child and Family Agency as applicant, on the face of it also appear to be within the

wording of the rule.

34. Order 39 provides “if the procedure for the conduct of civil proceedings is not prescribed by these rules or by an enactment, the

Court may determine what procedure.” The Child and Family Agency submits that Order 84 prescribes the procedure for proceedings

under the 1991 Act. This is largely true, but Rule 84 is silent as to withdrawal of proceedings. The 1991 Act is also silent as to

withdrawal of proceedings.

35. If I accept that Order 47B applies, the issue then arises as to how any jurisdiction or discretion under that rule might be

exercised. It is undeniable that in exercising that jurisdiction or discretion, I would either allow the Child and Family Agency to

withdraw, or I would not. If I did not so allow, that would set at naught the decision of the Child and Family Agency not to pursue the

application, which said decision is made by it pursuant to its statutory duty under section 16. It would replace that decision of the

Child and Family Agency with a decision of the Court that an application for a care order under section 18 (1) be pursued by someone

[and as set out above, the only entity with locus to do so is the Child and Family Agency], or alternatively that the Court order the

Child and Family Agency to pursue an application that it has already, in pursuance of its statutory duty under section 16, decided it is

its duty not to pursue. The effect would be that the Court would set aside what this Court must accept as the intra vires decision of

the statutory body solely charged with the duty of making applications under section 18(1), and replace it with a decision (to proceed

in some manner), that decision being of a body (i.e. the Court) that has no statutory function in deciding whether any application

should be made. I do not believe that this Court has the jurisdiction to do that, by virtue of Order 47B, any more that it has

jurisdiction to do so on its own motion or the application of any person under section 47 1991 Act, or otherwise.

36. I have considered the Guardian Ad Litem’s submissions in respect of the operation by the UK courts of 29.4 of the FPR, which I

understand issued in 2010. I have not had the opportunity to open the relevant legislation, but I have read the various cases. Clearly,

the UK courts take the view that they may refuse an application by a local authority (LA) to withdraw an application, that they may

require the LA to proceed against its own assessment, that the Court may call witnesses in connection with hearing the application

which it refused to permit to be withdrawn, and that the Court may require the LA to adhere to a care order made by the Court that

the LA did not ask for and has expressly stated that it does not want.

37. The UK decisions are of course not directly applicable. For the reasons previously set out, I do not believe I have the jurisdiction

to do as they have done.

38. I am aware of the various expressions in various cases (some of which predate the 1991 Act) which refer to child care

proceedings as being inquisitorial, in the nature of an inquiry, similar to wardship, not a lis inter partes etc. The 1991 Act does not

refer to the nature of proceedings under it as inquisitorial or constituting an inquiry. Most, perhaps all, of the remarks made were in

cases dealing with the admission or otherwise of hearsay evidence. It is a commonplace that as regards evidence, the role of the

judge, the formality or otherwise of the proceedings, proceedings under the 1991 Act acquire some of the characteristics which we in

common law adversarial jurisdictions perceive to be inquisitorial. Nevertheless, as pointed out by Ms Justice O’Malley in HSE v OA

[2013] IEHC 172, at paragraphs 63 and 64,

“63. I accept that child care proceedings under the Child Care Act, 1991 may not be directly analogous to most other

forms of litigation. It is certainly the case that the judge's function is different, in that he or she must adopt a more

inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations.”

“64. However, that is not to say that it is wholly unlike other litigation. The concept that "there are no winners or losers"

is an appropriate one for the attitude of the professional staff of the HSE and its lawyers, but it asks a degree of

detachment that is very unlikely to be shared by a parent. The procedure is, as a matter of fact, adversarial.

Furthermore, although the proceedings may often be more accurately described as a process than a unitary hearing,

there may well be individual issues decided along the way in favour of one side or another.”

39. The 1991 Act proceedings remain at the very least mixed in character. I do not believe that it is within jurisdiction for the Court,

in the context of withdrawal of proceedings by the Child and Family Agency, to take up the application itself as an inquiry, as to do so

would set aside what this Court must accept as the intra vires decision of the statutory body solely charged with the duty of making

applications under section 18(1), and replace it with a decision (to proceed in some manner), that decision being of a body (i.e. the

Court) that has no statutory function in deciding whether any application should be made.

40. The jurisdiction of the District Court is limited and local. The jurisdiction of the District Court under the 1991 Act is set out in

section 28, which states that the District Court “shall have jurisdiction to hear and determine proceedings”. The function of this

Court is to hear any application that is made to it, not to decide whether an application ought to be made to it. There is no statutory

provision for the Court to direct the maintenance of proceedings. Such direction is in my view and for the reasons previously set out

beyond the jurisdiction of this Court. If I were to refuse grant the application to withdraw, then this Court would be acting either as a

review tribunal in respect of the decision of the Child and Family Agency not to continue an application to the Court, or as an appeal

tribunal in respect of the decision of the Child and Family Agency not to make continue an application to the Court. I do not believe

that this Court has jurisdiction to do either, in the context of an application under section 18 (1).

41. It follows from the above that the application under section 18 (1) in respect of C and D and which was issued in 2014 is now at

an end. The Guardian Ad Litem is automatically discharged, with costs to follow per section 26 of the 1991 Act.

Brendan Toale

District Court