See also Vol 1 of 2019: https://www.childlawproject.ie/latest-volume/child-joined-as-a-party-to-high-court-proceedings/
The Court of Appeal dismissed an appeal against a special care order in the case of a child who obtained the right to full representation in order to appeal against the order. The three-judge Court of Appeal, the President, Judge Birmingham, sitting with Judge Marie Baker and Judge Maire Whelan, found that the totality of the evidence provided the basis for a finding that a special care order was necessary, proportionate and validly made.
The proceedings related to a 17-year-old child who sought to set aside the special care order on the grounds that the statutory threshold was not met and that the order failed to protect, defend and vindicate her constitutional rights, particularly her right to liberty. Such an order lasted for three months and could be extended for a total period of up to nine months.
The Court of Appeal rejected her appeal on that the High Court trial judge was incorrect in her determination that the statutory threshold for making a special care order pursuant to s.23H, Part IVA of the Child Care Act 1991 (the 1991 Act) was met.
The 17-year-old appellant was born in Ireland into a household of extreme depravity and domestic violence. She was an only child.
Her parents, who were from overseas, had been described as seemingly being involved in a severely dysfunctional relationship. The appellant witnessed her father’s abusive conduct towards her mother. The appellant was also physically and emotionally abused by her father. When she was old enough, the father recruited her to join him in the abuse of the mother.
The appellant was taken into care at the age of 10 and had remained in the care of the State ever since, initially residing in foster care arrangements, subsequently in residential care, laterally serving sentences of detention following convictions in the District Court.
The CFA sought interim special care orders and subsequently a full special care order due to the appellant’s suicidality and her repeatedly expressed intention to take her own life with the date identified as being on her release from a detention centre. The appellant claimed before the High Court and on appeal that these threats were wholly instrumental – solely aimed at achieving outcomes that were being denied to her – and were not seriously intended. The appellant was not suitable for detention under the Mental Health Act, 2001.
After two interim special care orders, pursuant to section 23L of Part IVA of the 1991 Act, the High Court made a full special care order, which was the subject of the appeal.
The Appeal proceedings
In addition to the appellant’s guardian ad litem (GAL) representing her interests through a legal team in the High Court and on appeal, the appellant, as a child with rights of a party, had her own legal team of solicitor, junior and senior counsel at the High Court and for the appeal (sections 25 and 26 of the 1991 Act as amended).
The first respondent was the Child and Family Agency (CFA). The second respondent was the appellant’s mother. The third respondent was the appellant’s GAL. All respondents supported the application before the High Court for the making of a special care order and opposed the appeal. The appellant’s father was not a party to the proceedings.
The case concerned the interpretation of s.23H of Part IVA of the Child Care Act 1991 and in particular whether the High Court judge erred in determining that the threshold for making a special care order pursuant to s.23H had been met.
Statutory scheme for the detention of children in special care: Section 23H
The statutory framework relating to special care orders for children, which involves intervention to provide secure therapeutic care, was introduced by the Child Care (Amendment) Act 2011 (the 2011 Act) which substituted and inserted Part IVA into the Child Care Act, 1991 (Part IVA). Part IVA was commenced by Statutory Instrument on the 31st December 2017. Prior to this such cases were dealt with pursuant to the inherent jurisdiction of the High Court.
The statutory pre-requisites which must be established by the CFA to the satisfaction of the High Court before it makes a special care order are outlined in s.23H of the Act. The provision identifies eight separate criteria of which the High Court must be satisfied prior to making a special care order:
“23H.— (1) Where the High Court is satisfied that—
(a) the child has attained the age of 11 years,
(b) the behaviour of the child poses a real and substantial risk of harm to his or her life, health, safety, development or welfare,
(c) having regard to that behaviour and risk of harm and the care requirements of the child—
(i) the provision, or the continuation of the provision, by the [Child and Family Agency] to that child of care, other than special care, and
(ii) treatment and mental health services under, and within the meaning of, the Mental Health Act 2001, will not adequately address that behaviour and risk of harm and those care requirements,
(d) having regard to paragraph (c), the child requires special care to adequately address—
(i) that behaviour and risk of harm, and
(ii) those care requirements, which the [Child and Family Agency] cannot provide to the child unless a special care order is made in respect of that child,
(e) the [Child and Family Agency] has carried out the consultation referred to in section 23F(3) or, where the [Child and Family Agency] has not carried out that consultation, the High Court is satisfied that it is in the best interests of the child not to have carried out that consultation having regard to the grounds provided in accordance with section 23F(9),
(f) in respect of the family welfare conference referred to in section 23F(5)—
(i) the [Child and Family Agency] has convened the family welfare conference and the F116[Child and Family Agency] has had regard to the recommendations notified in accordance with section 12 of the Act of 2001, or
(ii) it is in the best interests of the child that the family welfare conference was not convened having regard to the information and grounds provided in accordance with section 23F(10),
(g) for the purposes of protecting the life, health, safety, development or welfare of the child, the child requires special care, and
(h) having regard to paragraphs (a) to (g), the detention of the child in a special care unit, as it is required for the purpose of providing special care to him or her, is in the best interests of the child, the High Court may make a special care order in respect of that child.
(2) A special care order shall specify the period for which it has effect and that period shall not exceed 3 months from the day on which that order is made unless that period is extended under section 23J…”
Submissions on behalf of the appellant child
As a starting point, the court heard that the facts of the case were “largely not in dispute” and that the case concerned primarily the interpretation of the relevant sections of the new statutory regime for special care. Counsel argued that the High Court judge’s finding that the threshold for the making of a special care order pursuant to s.23H of the Child Care Act 1991 had been met was incorrect.
Counsel relied on the jurisprudence pre-dating the coming into operation of Part IVA of the 1991 Act on the 31st December, 2017, particularly the decision of the Supreme Court in D.G. v. Eastern Health Board  3 I.R. 511 and the High Court decision of MacMenamin J. in S.S. v. Health Service Executive 1 I.R. 594 regarding the inherent jurisprudence of the court to detain a minor.
The court heard that the State’s margin of appreciation to detain a minor could not be construed as being wide. In D.G. v Ireland. ECHR (2002) the European Court of Human Rights found Ireland in violation of Article 5 of the Convention of Human Rights (right to liberty and security of persons). The judgment of that court affirmed that the provision of education was a prerequisite to lawful detention under Article 5(1)(d).
No clear and convincing evidence of real and substantial risk
Counsel for the appellant said that there was no “clear and convincing” evidence of a “real and substantial” risk to her life within the meaning of s.23H(1)(b) of the 1991 Act. There was no record of the appellant ever having tried to commit suicide, or ever having tried to self-harm. The appellant had claimed to have wished to commit suicide and self-harm but “those wishes were instrumental to achieve certain goals”.
Counsel said that the judge erred in considering a doctor’s report that was not intended for court use. The court heard that particular reliance was placed in the clinical letter of the named professional expert. The professional expert had declined to clarify whether he believed that the appellant should have special care. On the contrary, counsel said that the judge failed to give sufficient weight to the views of the director of the Children’s Detention Campus, who considered that the appellant did not require special care.
No clear clinical view special care required
The court heard that there was no “clear clinical view” that the appellant required special care. Arguing that special care was not the best way to address the risks outlined in the evidence, counsel said: “There were concerns but the link between the concerns and making the order is missing.”
Noting that the child’s issues needed to be addressed at a therapeutic level, the judge said that the underlying evidence showed that the child’s anxiety was related to gender identity. “Has there been any intervention to address that underlying issue?” asked the judge. It was agreed that counsel for the CFA would provide more details to the court in this respect.
Real and substantial risk to others
In addition, counsel told the court that the appellant did not pose a real and substantial risk to others. She had served a period of imprisonment for an assault she had committed several months earlier. The appellant had not assaulted further since that date or for twenty months prior to that date.
The court heard that the High Court judge took into account an improper consideration in finding that diverting the appellant from violent tendencies towards others achieved a welfare benefit for the purposes of s.23H. According to counsel, if that was a permissible consideration under the statutory code, then any child with a record of posing a risk to others could potentially be detained in special care to address his or her violent tendency towards others.
Section 25 of the Children Act (England & Wales) 1989 and Section 3 Mental Health Act 2001
Counsel contrasted s.23H(1)(b), with the provisions of s.25 of the Children Act (England & Wales) 1989, which expressly references the likelihood that a child would injure “himself or other persons” as a basis for detention. Similarly, section 3 of the Mental Health Act 2001 made reference to “the person concerned causing immediate and serious harm to himself or herself or to other persons”. Counsel said: “The fact that these words are missing from the provision is not unintentional. There must be a reason why the Oireachtas did not use them.”
In the absence of clear and compelling evidence of risk to herself, and of the need for special care or of therapeutic benefit, the special care order was not in the best interest of the appellant and should not to have been granted. Counsel concluded that the special care amounted to preventative detention of the appellant and as such, violated the guarantees in Article 40.4 of the Constitution (constitutional right to liberty).
Views of the Appellant
Counsel said that the judge had failed to adequately consider that the appellant was not willing to engage in therapy whilst in special care, save with regard to gender issues. The judge had also failed to have adequate regard to the repeated wishes of the appellant not to be in special care.” “Given the proximity of her 18thbirthday, her wishes must be considered in any outcome,” said counsel.
Submissions for the Child and Family Agency
In relation to the gender issue, counsel for the CFA told the court that the expert psychotherapist in the UK was of the view that it was a mechanism for the appellant “to deal with deeper problems”.
The judge said: “I was wondering whether during the period of detention it was addressed?” The court heard that the provisions of the Act required to review all special care cases at least once every four weeks. Accordingly, the case was reviewed every four weeks and subsequently on a weekly basis. In the course of this, the appellant had been provided with regular updates regarding the Agency’s psychological and other medical health interventions.
A consultant doctor was trying to engage the appellant in therapy. Counsel said: “It is a very complex case. Lots of clinicians have seen her and they all agreed. It is not a mental health issue but a border-line personality disorder. The risk is very serious in terms of harm to herself and others.”
Real and substantial risk
Counsel for the CFA said that the High Court was correct to find that the threshold for making the special care order had been met by the facts in the case. In relation to the risk of suicide and self-harm, the appellant had claimed that she did not mean what she said and that her wishes were instrumental to achieve certain goals. “So what she said could be true or not. Whether you are actively intending it or not, if you take the steps, the risk still exists,” said counsel.
Real and substantial risk to others
The court heard that a placement in a very specialised therapeutic unit dealing with the appellant on a one-to-one basis had broken down because she had assaulted a staff female driver. Given the extremely complex and disturbing behaviour, special care was required to address the risk and to allow a broad analysis of what was required.
According to the CFA counsel, the appellant’s violence towards others, particularly women, had an effect on her own welfare. “How do we protect the [appellant] from the [appellant]?” said counsel acknowledging that it was a slow process. The purpose of special care was to help her address that behaviour, which was connected to profoundly traumatic experiences.
The CFA counsel accepted that the appellant would be correct if the only factor that she presented was a risk to others. He said: “The CFA objective is not to protect society. Preventative detention is not a feature of the child welfare decision process.”
Counsel for the CFA said that in granting the order for special care the court was not disregarding the appellant’s right to liberty, but was rather engaging in a carefully calibrated exercise of balancing the appellant’s right to liberty with her other constitutionally protected countervailing rights, particularly her right to life.
Counsel said that it was a separate exercise from the question of preventative detention and that the appellant was not being detained to prevent her from carrying out criminal activity, but rather to achieve the objectives specified in s.23H(1)(g) and 23H(1)(h) of the Act. The judge noted: “Constant aggression is a coping mechanism, a way of interacting. That is one of the therapeutic objectives of [special care]. It is not a detention for punishment but to protect herself.”
Section 25 of the Children Act (England & Wales) 1989
The judge asked counsel how s.23H(1)(b) contrasted with the provisions of s.25 of the Children Act (England & Wales) 1989, which expressly references the likelihood that a child would injure “himself or other persons” as a basis for detention. The CFA counsel said that the Irish statute was more extensive and described in more detail different circumstances. “It is a more sophisticated and modern piece of legislation,” he said.
Counsel for the CFA concluded: “The judge was presented with extensive evidence, including from the child herself, who requested it. In her judgment she reflected on all the evidence and correctly identified statute. She gave correct weight to the evidence and addressed the views of the child. For that reason we ask that the appeal is dismissed.”
Submissions for the Mother
Counsel on behalf of the appellant’s mother addressed the court and submitted that the High Court judge was correct in her findings at the time of the application. The criteria pursuant to s.23H of the 1991 Act had been met and there was no error in law or in fact on the part of the judge. Counsel said that the mother strongly wanted to support the appellant out of special care, sooner rather than later but, based on the evidence, it was not in the best interest of the child at that point in time.
Submissions for the Guardian ad litem
Counsel on behalf of the GAL outlined the role of the guardian ad litem in the appeal. He said that the function of the GAL appointed under s.26 of the 1991 Act was to represent the views of the child and to promote the best interests of the child in the litigation process. The GAL believed that the special care order was in the appellant’s best interests.
Given that the views of the child and the best interests of the child were conflicting, the GAL could not represent both. Due to the “therapeutic dimension” of the relationship, the GAL “did not want to get too involved”. Emphasising the importance of the views of the child, counsel said that the GAL applied and supported separate representation for the appellant pursuant to s.25 of the 1991 Act and according to Judge Baker’s judgement in A O’D v O’Leary and Others  IEHC 555.
In relation to the threshold to be reached by the High Court before it could make a determination that an order was warranted pursuant to s.23H of the 1991 Act, counsel said that “the trigger” was the behaviour. Section 23H(b) did not apply unless the child behaved in a certain way. He said: “I suggest that the Oireachtas deliberately adopted a wide approach to protect children.”
Judge: “What do you consider to be distinctive ‘real risk of substantial harm’”?
GAL counsel: “We are not dealing with minimal or simple. It has to be really serious. It is the next element of this child’s particular propensity to engage in significant violent assault to other females. Why is the child doing that? What would be the effect if it continues?”
Counsel for the GAL added that it was the type of behaviour that could be addressed by special care and that involved therapeutic treatment. The situation would be different if the only purpose of the detention was to protect others without receiving treatment of therapeutic value. He said: “Nobody is saying that you lock up children just for the purpose of protecting others. I suggest this case falls confidently within the statutory criteria for special care on the evidence before the court.” According to counsel for the GAL, the special care order made on the evidence before the High Court was lawful.
At the outset, the judge said that Part IVA of the Act, as a remedial social statute, was to be interpreted purposively. The judge endorsed the principle outlined in K.A. v. Health Service Executive  1 I.R. 794  1 I.R. 794 that in child care cases the judge’s role was “more inquisitorial than usual” and “the parties applying for an order should establish grounds for making the order.”
The judge noted that the Court of Appeal was in as good a position to draw inferences form the facts as was the High Court given that the evidence before the High Court was in the form of the relevant documentation, including the affidavits and the documents exhibited to those affidavits, particularly a large volume of medical reports. There were not witnesses called and there was not application to cross-examine any witness.
The principal issue to be determined was whether the High Court had been correct as a matter of law and fact in determining that the statutory threshold for making a special care order pursuant to s.23H was met. The first limb of s.23H required a determination that the appellant’s behaviour constituted a real and substantial risk to her life, health, safety, development or welfare. The second limb of s.23H required the court to be satisfied that a special care order was in the best interests of the appellant.
In construing s.23H and the protections necessary for its operation, the judge adopted the approach outlined in the decision of the Supreme Court in D.G. v. Eastern Health Board  3 I.R. 511 and the High Court decision of MacMenamin J. in S.S. v. Health Service Executive 1 I.R. 594. In particular the principle that in exercising the inherent jurisdiction of the High Court, regular review of the balance of rights is an integral part of the procedure. These rights included “an adequate opportunity for the views of the minor to be made known to the court…”
The judge found that decisions of the Supreme Court in the area of detention for mental health treatment were of some assistance in interpreting the civil detention powers specified in the special care provisions. There was a material analogy between statutory schemes having regard to the protective and welfare-oriented character of the legislation in question. The decisions had tended to lay emphasis on a protective or paternalistic intent of legislation concerning persons with incapacity (EH v Clinical Director of St. Vincent’s Hospital  3 I.R. 774, Gooden v. St. Otteran’s Hospital  3 I.R. 617).
According to the judge, the use of the word “requires” in s.23H(1)(g) connoted that protecting the life, health, safety and development, or welfare of the appellant necessitated intervention by means of special care. Given the very strong expert evidence before the High Court, the judge held that the trial judge was correctly satisfied, pursuant to s.23H(1)(g), that a special care order was required in the case of the appellant for the purposes of protecting her life, health, safety, development and welfare.
The judge said that the structure of s.23H(1)(h) was intended to be a measure of short duration and last resort. By the time the appeal was heard, the focus of the appellant’s case was already directed towards identifying an appropriate step-down facility from special care. It was clear from the evidence that the CFA had adverted to the importance of ensuring that the detention of the appellant, pursuant to the provisions of special care order, was for the shortest duration compatible with addressing her complex welfare needs. The judge found that it represented a responsible exercise by the CFA of the exceptional jurisdiction to be found in s.23H.
Best prospect to address risk of real and substantial harm
The CFA had put before the High Court, in painstaking detail, comprehensive expert assessments and reports addressing in particular the risks of self-harm and suicidality. The reports noted many of the potential ameliorating elements, such as family bonds, friendship or relationships with third parties, were absent.
The judge found that the High Court was correct in its conclusion that a special care order was in the best interests of the appellant and offered the best prospects of addressing the compelling evidence of real and substantial risk of harm that her own behaviour posed to her life, health, development, safety and welfare.
Contrary to the claim on behalf of the appellant, the judge held that the High Court was entitled to have regard to the clinical letter that was not intended for court use because it identified significant risks to the life of the appellant. The special care litigation process was of inquisitorial nature because it concerned a minor. It was imperative that the CFA and all parties to the application would be at liberty to put before the court any evidence of relevance which could be of assistance to the court in making a determination.
In addition, if any of the parties had wished to impugn the views expressed, the findings of fact or the clinical diagnoses and assessments made, they could have sought to cross-examine witnesses or to subpoena a witness. The fact that the letter concluded that only a secure placement would be appropriate to the appellant’s needs was underlined.
Although the court did have regard to the views of the director of the Children’s Detention Campus, it was not bound to accede to those views particularly in circumstances where there were a significant number of expert views that disagreed with him including psychological, medical and psychiatric professional opinions. The judge was satisfied that, on balance, the trial judge was entitled to reach a conclusion that not a great deal of weight ought to be attached to the director’s views in that regard.
Violent tendency towards others
The judge found that the violent conduct, including violent sexual attacks on females, posed a real and substantial risk of harm to the victims of such attacks and also to a young assailant, especially a minor in the circumstances of the appellant. Importantly, such conduct posed a potentially significant risk to the life of the assailant.
Living a meaningful life required some degree of socialisation thus the random and violent conduct did not dilute its capacity to impact on the development, safety and welfare of the young perpetrator. According to the body of expert reports, it was an expression of the profound psychological trauma and injury suffered as a result of the behaviour experienced by her within her family during her early childhood and up to her ninth birthday.
The applicant found it difficult to engage in a process of self-understanding that required confronting, with psychological support, the aspect that the appellant had colluded with her father under his coercion in acts of abuse perpetrated upon her own mother. The judge held that therapeutic intervention, which has the potential to confer insights and assist in adjusting such personally destructive behaviour, was in the best interests of the development and welfare of the appellant. Given the appellant’s age, the judge found that there remained very little time within which the CFA could discharge this statutory obligation.
Section 25(1)(b) of the Children Act (UK) 1989
The judge was satisfied that no inference could be drawn from the fact that the language of s.23H differed from s.25(1)(b) of the Children Act (UK) 1989, which makes reference to a child who is “…likely to injure himself or other persons”. The different statutory provision, operative in the jurisdiction of England and Wales, had not been construed in the context of constitutional rights and protections of the Irish jurisdiction.
According to the judge a key differential factor was Article 42A.4.1 of the Irish Constitution where it was expressly specified that where the State brings proceedings for the purpose of preventing the safety or welfare of the child from being prejudicially affected then “the best interests of the child shall be the paramount consideration.”
The Court of Appeal considered whether the deprivation of liberty involved in the operation of a special care order could be justified in light of the Constitutional, ECHR and legislative rights and protections that the appellant enjoyed.
The presumption was that the Oireachtas intended to provide a remedy for a particular mischief by virtue of the legislation and accordingly a purposive construction was applied. The judge said that s.23H should be construe with due regard to the jurisprudence on Article 5 of the ECHR. The purpose of Article 5 was to ensure that an individual was not deprived of her liberty without proper safeguards.
The judge found that there were statutory safeguards accompanying the making of the order and a clear statutory regime of supervision and review provided for under the Act. It was significant that the legislature had laid down the upper time limit of a special care order as being three months with regular statutory reviews. The High Court had correctly operated the statutory regime and had actively managed, supervised and monitored the case throughout the duration of the order. The depth of the investigation undertaken by the CFA prior to bringing the application for a special care order was noteworthy.
Therefore, the appellant’s detention on foot of the special care order could not be held to amount to a deprivation of liberty. In addition, the judge found that the absence of any expert evidence before the High Court to support the proposition that making a special care order was not in the appellant’s best interests fatally undermined the proposition that the order could be characterised, on the evidence, as preventative detention.
Views of the appellant
The judge found that the fact the appellant had claimed she would not engage with the therapy in special care was not a reason to refuse to make the order. She had a propensity to make statements that were instrumental in nature and calculated to achieve an outcome. According to the Court of Appeal, the appellant could be denying that she was a suicidal risk in order to achieve the desired outcome, which was to avoid a special care order.
A high level of professional expertise could help her to overcome her resistance to engagement and to develop insight into the positive welfare and developmental advantages she could gain from the process. There was clear evidence of the potential for educational and therapeutic dimensions in the special care regime proposed.
The judge found that the trial judge did have due regard to the wishes of the appellant. The High Court had heard her evidence by video link and had considered all her letters and submissions and arguments advanced by her counsel. The trial judge carried out a careful and comprehensive balancing exercise, weighing the appellant’s rights to liberty and to have her life and welfare preserved.
The Court of Appeal upheld that the High Court judge was not incorrect in her determination that the statutory threshold for making a special care order, pursuant to s. 23H of the Child Care Act 1991, was met. The special care order was both necessary and proportionate and validly made.