Children who had been in care for two years returned to their parents after the Dublin District Court ruled that it did not have jurisdiction to refuse to allow the Child and Family Agency withdraw an application for full Care Orders. The court found that the application was at an end in the light of the CFA application to withdraw it. Counsel for the guardians ad litem for the children had argued that the court had jurisdiction to refuse to permit the withdrawal of the application, but this was rejected by the court.
Judge Brendan Toale furnished to the parties and the two GALs involved in the case a written judgment outlining the reasons for his decision. This decision was headed: “NOT FOR PUBLICATION WITHOUT SPECIFIC CONSENT OF THE COURT”.
Ruling on publication
The director of the Child Care Law Reporting Project then attended court to seek the specific consent of the judge to publish the decision. The judge said he did not consider he could prohibit the publishing of a report under the legislation covering the CCLRP. He quoted the Act: “Nothing contained in this section shall operate to prohibit (a) the preparation of a report of proceedings under Part III, IV or VI by … a person falling within any other class of persons specified in regulations made under subsection (7) for the purposes of this subsection”, which covered the CCLRP.
This meant, he said, that he could not prohibit the publication of a report of the proceedings, including the contents of the decision, while he could prohibit the publication of the full decision as it was made by him. Nor could he have any role in the editing of the report, he said.
He referred to a High Court judgment where an unrepresented party had sought a report relating to his proceedings. The High Court had ruled that the party could not receive the report, but could read it and there was nothing to stop him from taking notes and transcribing it in full.
The application for full Care Orders under Section 18 of the Child Care Act, relating to the two younger children [C and D] of a family of four, was first made in March 2014. The older siblings [A and B] were in care under Interim Care Orders and the two younger ones had been under Supervision Orders prior to March 2014. When the Care Order applications were lodged, Interim Care Orders were also sought and granted for the younger children. Guardians ad litem were appointed for the children, [X] for the A and B, and [Y] for C and D. X was permitted to attend the proceedings though the older children were not subject to them.
The Interim Care Orders were renewed on a number of occasions, prior to the Care Order hearing beginning in February 2016. After 29 days of evidence and a number of applications for adjournments, the Child and Family Agency sought to withdraw the Care Order applications on 30th May.
Giving his ruling on this application, and after summarising the background to the case, Judge Brendan Toale said: “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 s 18(1) application issued on 20th March 2014 was ultimately listed for hearing, to commence on 1st February 2016.
“Since 1st February 2016, this court has heard some 29 days of evidence, including viewing of DVD recordings of interviews of some of the children, which in itself took up some six days, and including hearing at length from several expert witnesses, at least three of whom attended from other jurisdictions. The case was further listed for some eight 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 CFA (that is the evidence that the CFA 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 GAL 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 five to 10 days.”
Judge Toale said that, as the evidence is incomplete, the court could not at present make any findings of fact based on the evidence heard to date.
He continued by recalling that since the commencement of the substantive hearing on the application, and without completing its evidence, the CFA had made four separate applications to adjourn the hearing. The court refused the first two applications, but in any case the application did not proceed at that time as no witnesses were produced by the CFA. The court granted the third adjournment application, with the consent of the respondents and the GAL.
When the case came back for hearing on 30th May the CFA applied again for an adjournment, which was refused. Immediately following the refusal of that application, counsel for the CFA said she was instructed that the CFA now wished to withdraw its application for Care Orders.
The judge commented: “One has to wonder as to the basis on which an application for adjournment was made in circumstances where the CFA now argue [and it is intrinsic to this decision] that it had decided not to pursue the application.”
The jurisdiction issue
The issue then arose as to whether the court had jurisdiction to refuse an application by the CFA to withdraw an application, and how such a jurisdiction might be exercised. The court invited submissions, and legal submissions were received from the CFA, the respondent parents and the two GALs. Judge Toale said he would first consider the issue of whether the court had jurisdiction to allow the CFA to withdraw the application. This matter was discussed on June 1st and 2nd, and judgment was reserved.
Judge Toale then delivered a written ruling on the jurisdiction issue, which is summarised here.
He pointed out that the parents did not oppose the withdrawal of the application, and were ambivalent on the question of whether the court had jurisdiction to permit its withdrawal, but if it did have jurisdiction it should not exercise it. The GALs considered that the court did have jurisdiction to refuse permission to withdraw the application, but reserved judgment on how that should be exercised.
The judge quoted Section 16 of the Child Care Act, stating that the Child and Family Agency has a duty to apply for an appropriate order where it appears a child requires care or protection he or she was unlikely to receive unless the order was made.
The judge commented: “I am satisfied that if it does not appear to the CFA 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.” (court’s emphasis)
He continued: “I am also satisfied that if it did, at one time, ‘appear to the CFA 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 CFA has moved an application for such an order, but that at a later time it does not appear so to the CFA, 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.” (court’s emphasis)
The judge also quoted Section 3 of the Act, which sets out the general function of the CFA in protecting children. He added: “Decisions of the CFA in pursuance of its duty under s 16 are a matter for the CFA. 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 CFA in this court. It is not the function of this court to decide whether an application should be brought.”
He then quoted Section 18 of the Act, which concerns applications for Care Orders. He pointed out that this section sets out the jurisdiction of the court, on an application by the CFA. “That jurisdiction is to exercise a discretion to make an order or not, if the court is satisfied on an application by the CFA that (a) or (b) or (c) [referring to the basis for granting the application] 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.” (court’s emphasis)
He referred to a High Court judgment of Mr Justice McMenamin in HSE v NC and EC, 21st January 2008, which stated that only the HSE (now the CFA) could institute proceedings under Section 18 (1) of the Act. This is contrasted with Section 18 (2), where the court on its own motion or the application of any person can extend the operation of the order.
Judge Toale pointed out that he had come to a similar conclusion in somewhat similar circumstances, except it was in relation to a Supervision Order. There he had 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”.
He said it had been submitted, in particular by counsel by the GAL, Y, that somehow, once started, the application no longer required to be made or moved by the CFA. However, the judge said he did not accept that the application could at any stage “stand alone” without an applicant, taking on a life of its own.
The GAL had argued that the court had jurisdiction under District Court Rules relating to the withdrawal of a claim, and under the DMA practice direction, to refuse to permit the withdrawal of the application.
However, if he accepted that the District Court Rules permitted him to allow or refuse the application to withdraw, this would mean he would replace the decision of the CFA (on making an application) with a decision of the court as to whether it should stand or be withdrawn. If he found it should not be withdrawn “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 s18(1), and replace it with a decision (to proceed in some manner)…
“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 s47 CCA, or otherwise.”
Referring to decisions of the UK courts in similar cases, he pointed out that the UK decisions are not directly applicable and he did not believe he had jurisdiction to do as they had done.
He also mentioned various references to child care proceedings as being inquisitorial, in the nature of an inquiry, though this is not stated in the Act.
“Most, perhaps all, of the remarks made were in cases dealing with the admission or otherwise of hearsay evidence,” he pointed out, adding that Ms Justice O’Malley had pointed out in HSE v OA : “That [the inquisitorial aspect of such proceedings] 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.”
“CCA proceedings remain at the very least, mixed in character,” Judge Toale added. He said he did not believe it was within the jurisdiction of the court, in the context of a withdrawal of proceedings by the CFA, to take up the application itself as an inquiry, setting aside the decision of the statutory body solely charged with the duty of making applications.
The jurisdiction of the District Court is limited and local, and its function was to hear any application made to it, not to decide whether an application should be made, he said. If the court was to refuse the application to withdraw, it would be acting either as a review tribunal in respect of the decision of the CFA not to continue an application to the Court, or as an appeal tribunal in respect of the decision of the CFA 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 s18(1),” Judge Toale said.
He said it followed that the application for Care Orders, begun in March 2014, was now at an end. The GAL was then automatically discharged.