High Court dismisses judicial review claims regarding guardian ad litem role and access orders as out of time.

Neutral Citation [2016] IEHC 450

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 497 JR]

IN THE MATTER OF THE CHILD CARE ACT 1991 (AS AMENDED)

BETWEEN

MM AND MAM (A MINOR SUING THROUGH HIS PARENT/NEXT FRIEND MM)

APPLICANTS

AND

RELEVANT DISTRICT COURT JUDGE

(As substituted)

CHILD AND FAMILY AGENCY

(FORMERLY THE HEALTH SERVICE EXECUTIVE)

RESPONDENTS

AND

By Order

MIRIAM LYNE

NOTICE PARTY

JUDGMENT of Ms. Justice Baker delivered on the 29th day of July, 2016.

1. This is a telescoped hearing in an application for judicial review brought by the applicant in her own capacity and as mother and

next friend of the second named applicant, a six year old boy, who has been in the care of the State under s. 18 of the Child Care

Act 1991 (“the Act of 1991”) since an emergency care order was made on 15th July, 2011 and in respect to whom a full care order

was affirmed on appeal by the Circuit Court on 23rd October, 2013.

2. The applicant seeks reliefs in these proceedings arising out of the order made in the District Court on 25th May, 2015 by which the

access which she enjoys to two of her children was regulated. It is in respect of the access and ancillary arrangements made by the

District Judge in respect of the younger child that this application is brought.

3. This is the second of three applications heard by me for judicial review relating to orders made under the Act of 1991 in regard to

the children. In the course of the hearings an application was made by senior counsel, in reliance on the inherent jurisdiction of the

High Court, for an interlocutory order directing access between mother and child pending the conclusion of the applications for judicial

review or further order by the relevant court. I delivered an ex tempore judgment in that application on 4th December, 2015 in which

I refused the application, as I considered that I had no evidence on which I could make the order sought, and because the

determination of access arrangements in respect of this child remained before the District Court and an application was to be heard

by Judge Constantine O’Leary in Cork within two weeks of the hearing before me.

4. The application for judicial review makes 20 substantive claims, and was grounded on an affidavit which ran to 83 substantive

paragraphs and contained voluminous exhibits. The very extensive legal submissions furnished by counsel for the applicants presented

to a large degree as a “scattergun” approach and contained extensive quotes from decided cases, mostly of the Irish courts but also

of the European Court of Human Rights, but not linked to the factual nexus or the reliefs sought.

5. I directed counsel to summarise and consolidate his grounds and gave a considerable amount of leeway to him to put his paperwork

and arguments in order. The closing legal submissions were heard by me on 16th March, 2016.

6. I have attempted to categorise the reliefs and grounds as best I can, and have not used the number sequence found in the

pleadings

Relief and grounds

7. The primary relief sought is an order quashing the order of the relevant District Judge made on 25th May, 2015 on the grounds

that:

(a) The decision of the District Court was irrational in the sense identified by the Supreme Court in O’Keeffe v. An Bord

Pleanála & Ors. [1993] 1 I.R. 39 and Meadows v. Minister for Justice Equality and Law Reform [2010] IESC 3, [2010] 2

I.R. 701.

(b) The District Judge erred by failing to properly consider relevant material and/or gave undue weight to irrelevant

material.

(c) The District Judge approached the matter of access without having due regard to a right of the mother and child to

enjoy the company of the other, and to be reunified with one another, such that the District Judge failed to have regard

to the desirability of maintaining a bond between parent and child.

(d) The District Judge erred in law in relying on findings already made by him and by the Circuit Court on appeal in earlier

proceedings concerning the care of the young boy, and in particular that matters of fact found by the District Court, and

on appeal by the Circuit Court, which resulted in an order taking the minor child into the care of the CFA under the Act of

1991 ought not to have influenced the decision of the District Court in regard to the regulation of access.

8. Declaratory relief is sought with regard to the form of the access order made by the District Judge by which he confined access to

a particular location, and it is argued that those access provisions are unreasonable and failed to afford sufficient support to the

family unit.

9. A more broad declaration is also sought, that the CFA has a positive obligation to take steps to foster the reunification of families

where relationships have become fractured. It is not pleaded that the CFA owes a duty to reunify mother and child in the present

case, but a declaration is sought that it ought to indicate to the mother what supports or assistance it proposes to put in place to

facilitate reunification.

10. A declaration is sought that the access order made by the District Court on 25th May, 2015 was not “reasonable” within the

meaning of s. 37 of the Act of 1991, when construed in the light of the constitutional rights of mother and child and rights under the

European Convention on Human Rights and/or the Convention on the Rights of the Child.

11. An order of certiorari is sought quashing a finding made by the District Judge on 25th May, 2015, that the 5 year old boy was

“presented asleep” for, or slept throughout, access and that this was not as a result of “anyone deliberately causing him to sleep”. I

do not propose to make relief in terms of that paragraph, it seems to me to quintessentially relate to the merits and to the factual

findings of the District Judge that are not within my remit in this judicial review.

12. Finally, application is made concerning the appointment of a guardian ad litem in respect of the child and declaratory relief is

sought in regard to the role the guardian ad litem has already taken or is entitled to take in future applications in the court process.

Application is made for the following declarations:

(a) A declaration that there is no lawful authority for the jointure of a guardian ad litem as a party to proceedings under

the Act of 1991.

(b) A declaration that as a guardian ad litem is merely a potential witness, that there is no lawful basis for permitting

him/her to either examine or cross-examine witnesses which make legal submissions to the court, and that the sole

permitted role is to convey to the court what she or he believes to be the views of the child, or matters that are in that

child’s best interest.

Factual background

13. By application made on 14th April, 2014 pursuant to s. 47 of the Act of 1991, (as amended) the CFA sought that the court would

determine whether the suspension of access between the mother and her young son was in the best interest of the child.

14. The application came before the court on various dates. On 30th April, 2014, an interim order was made regulating special drop off

and supervision arrangements. Evidence was heard over 15 days, and the District Judge delivered his decision on 25th May, 2015 by

which the applicant was permitted to have access with her son once every two weeks and access was directed to be conducted in

the manner provided by an earlier order with some variation.

15. The order which governs the access arrangements between mother and child, put in place a strictly choreographed access

arrangement, by which inter alia there was to be no camera used for 45 minutes of the one hour access period, that the mother was

to be present in the room ten minutes before access was due to start and that the first and last fifteen minutes of access be

recorded. The mother was directed thereby not to bring any blanket, musical or other toy to the visit and was not to engage with or

indulge in personal abuse or other remarks with the staff of the facility in which access was to take place.

Consideration of the primary application for certiorari

16. The order was made on the reasons and reasoning set out in a 48 page written judgement of the District Judge which recites that

evidence was heard from witnesses for the CFA, witnesses for the mother, and the mother herself, as well as her solicitor and the

guardian ad litem. Oral and written legal submissions were furnished to the court.

17. Dr. Caroline Goldsmith, a consultant neuro psychologist had been directed by the court to assess the quality of access between

mother and child and to consider whether access should be altered or discontinued temporarily or permanently, and in her report

described as a psycho-legal report dated 30th August, 2014, she dealt with broad issues such as bonding between mother and child,

and the need to provide a safe place to foster psychological attachment between parent and child.

18. A report dated 6th October, 2014 from Dr. Patrick Randall, a consultant clinical and forensic psychologist was also available. A

specific reference was made in the course of the report of Dr. Randall to the possibility of what was described as “reunification” of

parent and child.

19. The District Court also had a very large amount of detailed information and assessment of previous access visits, which had been

observed by the experts, as well as a detailed examination of the professional literature on the issue of child safety. Concerns

continued to exist surrounding the capacity of the mother to parent her child who had significant emotional and educational needs.

20. It is quite clear to me on my reading of the lengthy considered judgment of the District Judge that he did weigh the evidential and

other matters, in respect of which he made his order on 25th May, 2015. He considered the relevance and weight to be given to

findings of fact which he himself had made as a result of previous hearings and interlocutory orders, but did not in my view take an

incorrect approach to evidence which, as he put it, related to “the way things were on the dates they were delivered”.

21. The District Judge did what in my view he was not only entitled to do but required to do, namely make his determination on the

basis of the facts before him, consider those facts and findings of fact previously made by him, and his own knowledge of the case,

and he appropriately alerted himself to the relative weight that was required to be given by him to earlier findings. It was the

circumstances prevailing at the date of the order that were required to, and did in fact, influence him in making his decision. I can find

no error in his approach.

22. It seems also at the hearing of the application before the District Court, senior counsel on behalf of the mother addressed the

judge specifically on his right to rely on the findings that he made in his earlier judgments of 4th February, 2013 and 30th April, 2013,

and argued that as the appeal to the Circuit Court was a complete rehearing, findings made by the District Judge were no longer of

any effect.

23. O’Malley J. in K.A. v. HSE [2012] IEHC 288, [2012] 1 I.R. 794 at para. 22 of the judgment says as follows:

“The District Judge is entitled to rely on his or her own memory of evidence given at earlier hearings or on reminders

offered by counsel. However I do accept that the test to be applied at the time of the extension application must relate

to circumstances as they are at that time and that therefore the judge must be given up-to-date information as of that

date.”

24. Judge O’Leary referred specifically to that judgment of O’Malley J. in K.A. v. HSE and with regard to his right to rely on his previsou

findings he made the following observations:

“I take the view that they stand unless either higher court rulings that my conclusions were unsound, or additional

information, corrects my conclusions, or on reflection or submissions I decide there was a flaw in my thinking. I have

heard none of such circumstances … and on reflection I see no flaw in my thinking, so I will adopt them as part of the

material in these proceedings and act on those conclusions, to the effect that that was the way things were on the

dates that they were delivered.”

25. I consider that this approach was correct. Judge O’Leary alerted himself to how he was to assess the weight of the evidence and

previous findings. He showed no irrationality or error of process and indeed in my view his approach was careful, considered and

analytical.

The role of the Circuit Court

26. The argument is made now that the District Judge erred in his approach to the Circuit Court findings. The care order was affirmed

by order of that Court on appeal on 24th October, 2013. My judgment delivered today in the first judicial review concerning these

matters deals with that order (JR 2015 490).

27. It is clear that the application determined by the Circuit Court on appeal was conducted on a more narrow evidential and legal

basis from that conducted in the District Court, as the Circuit Court was hearing an application from one order of the District Court

only, whether final care orders should be made which were to inure until the three children the subject thereof reached the age of

eighteen years. The Circuit Judge was not required to engage with the determination of access arrangements.

28. Furthermore, no authority has been advanced by the applicants for the broad proposition that following a determination by the

Circuit Court hearing an appeal from the District Court, the facts found by the District Court had become merged and extinguished in

the later findings. The Circuit Judge delivered a much shorter judgment than that delivered by the District Judge and affirmed the

order of the District Court without making any findings that the District Judge had erred as a matter of law or in his findings or in the

approach he took.

29. Again, I find no error in approach.

The role of the experts

30. It is argued that the District Judge fell into error in his approach to the expert evidence.

31. A court may not permit an expert witness to displace the adjudicative and fact finding role of the court. That this could lead a

court into error was identified by Hardiman J. in DPP v. Yusif Ali Abdi [2004] IECCA 47 where he said:

“The role of the expert witness is not to supplant the tribunal of fact, be it judge or jury, but to inform the tribunal so

that it may come to its own decision … expert opinion shall not be expressed in a form which suggests that the expert is

trying to subvert the role of the finder of fact.”

32. A similar view has been expressed in the High Court in proceedings for declarations of nullity of a marriage. As Keane J. said in F.

(otherwise C.) v. C. [1991] I.L.R.M. 65:

“… the evidence of psychiatrists; … can of course assist the court as to the nature and extent of any mental illness

suffered by a spouse, but it is the responsibility of the courts alone and not of psychiatrists, however eminent, to

determine whether a decree of nullity should be granted.” (p. 79)

33. Similar views were expressed by Murphy J. in K.W.T. v. D.A.T. [1992] 2 I.R.11:

“At the end of the day it seems to me that I cannot abdicate my function to the experts, however distinguished, and

even though they are, in the present case, in agreement on the point that the parties to the marriage did not have an

adequate and emotional capacity to sustain the relationship.” (p. 22)

34. The District Judge did have regard to expert opinion adduced before him and insofar as it is pleaded that he was not entitled to do

so, I reject the assertion. It is apparent that expert evidence was adduced by both the CFA and the applicant mother. The evidence

of all the experts was reviewed comprehensively by the District Judge and he accepted certain aspects of the evidence but expressly

refused to endorse other aspects. He analysed the evidence of the experts but did not defer to them to the exclusion of his

adjudicative function. I do not consider that he fell into error in his approach to the evidence.

Consideration of the declaratory relief sought

35. The declaratory relief sought is to some extent not controversial. The importance of the role of the mother in the care of a child

is protected by the Constitution, by statute and under our international obligations. The central role of the family unit in the life of a

child is also one well established, and must be weighed against the individual personal right of a child to have his or her best interest

and welfare considered in any proceedings before an adjudicative body.

36. I do not propose setting out the theoretical basis and nature of these principles. My judgment in the third judicial review in this

sequence explains that the role of a court hearing an application for judicial review must be to consider the correctness of an

approach taken by a court or other body in a particular set of facts, and not to embark on a hypothetical analysis. (JR 2015 526)

37. The argument made by counsel is that a court in hearing an application for directions regarding the welfare of a child must

operate in a particular way and must at all times have the aim of reunifying mother and child and restoring the family unit.

38. I can find no basis in law for such a broad proposition. The principles which guide the court in determining matters of access are

the interest and welfare of the child. In any particular case those interests may require or demand that arrangements be put in place

to restore a fractured relationship between mother and child. But no evidence or argument has been put before me in the present

case which points to the District Judge having failed to respect or be alert to the first principles of child care law and the

constitutional principles.

39. Insofar as the mother is unhappy with access arrangements, she may appeal the order to the Circuit Court. It is not the function

of judicial review to hear an appeal on the merits.

40. The District Judge heard and determined a series of applications in regard to the child the subject of the care order, and engaged

with the factual, theoretical and legal nexus of his welfare and interests over many hearings. Approximately 60 days of court hearings

have been dedicated to the question in that Court, and as I understand the dates, this estimate does not include applications for

directions or incidental or one off questions that arose regarding individual access dates or arrangements. The District Judge had

before him a very large amount of material, including from psychiatrists and psychologists about the assistance of the guardian ad

litem appointed on the 27th October, 2011.

41. He was uniquely placed to assess the needs and interests of the child. It is not appropriate that I direct him to have regard to

matters of constitutional or legal principle of which he displayed more than sufficient knowledge. I do not for those reasons propose to

make the declarations sought.

The guardian ad litem

42. The guardian ad litem was appointed to the minor child and to his two siblings on 27th October, 2011 and has participated in very

many hearings of applications under ss. 17, 18 and 47 of the Act of 1991. By order of the 24th October, 2013 the order appointing

Ms. Lyne as guardian ad litem was affirmed on appeal by the Circuit Court.

43. The application is out of time insofar as it seeks orders in respect of the appointment, status and participation of the guardian ad

litem in the court process.

44. I have already given judgment in an associated application for judicial review (JR 2015 490) in respect of an application that the

Circuit Court order be quashed on account of the fact that the Circuit Judge did not deliver a written judgment and that no written

official note was available of his order, nor was there available a digital audio recording of the pronouncement of the order. The

decision was given, inter alia on the grounds that the applicant was out of time to bring judicial review and the relevant principles are

to be found in that judgment.

45. The applicants are quite clearly out of time to bring any application now to set aside the appointment of the guardian ad litem.

The applicant presents no basis upon which I might exercise my discretion to extend time, no reason was given for the delay, and the

delay in the present case is of a degree which far exceeds that which lead me to refuse relief in the related case.

46. The child the subject of the access order in respect of which this application is brought has been in the care of the State since

the 15th July, 2011, almost three years before the application before me finally concluded. The application for the final care order

involved a considerable amount of court time and resources, and the District Judge delivered a lengthy and considered written

reserved judgment. The guardian ad litem took part in the hearing before the District Court and before the Circuit Court

47. Further, the District Judge was addressed as to the role of the guardian ad litem and it was suggested that the guardian ad litem

was acting as “sweeper” for the CFA. Earlier in his judgment he said as follows:

“I am not clear what is meant by “sweeper”. I did not ask. The interpretation which immediately occurs is that the

Guardian’s role is not to fill any deficiency in the case made by the Agency. If that is what he meant, I agree … My view

is that the Guardian is obliged to exercise an independent function in terms of ascertaining the facts, including the child’s

views, as fully as possible, and conveying his or her understanding of what the facts are and his or her views on the best

interests of the child, as effectively as possible to the Court.”

The District Judge in my view had a clear view of the role he ascribed to the guardian ad litem.

48. I consider that the applicant is well out of time to seek an order of certiorari quashing the appointment of a guardian ad litem

under the Act of 1991.

49. I consider also that the applicants are now out of time to seek to challenge the orders made by the District Court on the grounds

asserted, namely that the District Judge erred in law and in fact in permitting the guardian ad litem to cross examine witnesses,

and/or to conduct herself as if she was a party to the proceedings, and to appoint a solicitor to represent her.

50. I consider that the relief sought by the applicant in these proceedings in regards to the appointment of the guardian ad litem are

a collateral attack on the conduct of the hearing before the District and Circuit Courts, and on the judgments of each of those

courts, and I do not propose making orders in those circumstances.

Future participation?

51. However, I consider that I should determine the application for judicial review in respect of one ground alone, the claim for

declaratory relief as to the role that the guardian ad litem is entitled to play in proceedings under the Act of 1991 and I do so for the

following reasons.

52. There has been a considerable amount of District Court and Circuit Court time expended with regard to the care and custody of

the minor child, the second named applicant in these proceedings. The mother of the children has had the benefit of legal

representation by junior and senior counsel who have been enthusiastic and committed in their services to their client. Should I not

now engage the question of the role the guardian ad litem is entitled to play in the court process under the Act, I anticipate that on

the next application before the District Court in regard to the care and welfare of the child, whether under s. 47 of the Act of 1991,

or otherwise for directions regarding the welfare of the infant, further submissions will be made by counsel and/or the solicitor

representing them with regard to the role of the guardian ad litem. I consider in those circumstances that it is proper that matter be

determined now, to obviate the need for further application for judicial review and/or appeal with regard to that point alone. The

interests of this child require that there be an end to the lengthy and contentious litigation regarding his care.

53. I intend in those circumstances, to deliver a separate judgment to deal with that part of this application for judicial review which

seeks relief with regard to the appropriate role the guardian ad litem may take in an application under the Act of 1991. Insofar as it is

necessary to do so, I will make an order extending the time for the bringing of that part of this application.

54. Subject as herein set out I propose refusing the balance of the relief sought.