Court of Appeal upholds High Court refusal to release child from CFA – 2018vol2#5

The Court of Appeal upheld a judgment of the High Court which refused to grant an application under Article 40 of the Constitution to release a baby in the care of the Child and Family Agency. The application had been brought by lawyers on behalf of the mother following the granting of an interim care order by the District Court.

The child was born in June 2018 to a mother who had herself been in care, including secure care, between the ages of 13 and 18 due to risk-taking behaviour. There were concerns about her unborn child before the birth and she agreed to enter a parent and child residential unit when the child was born and to undergo a parenting capacity assessment. She spent almost two months there, but had a lot of difficulties with staff and other residents, and the unit informed the CFA that her place was no longer viable due to her failure to engage meaningfully with staff. The CFA decided to seek an emergency care order for the infant.

On the expiry of the emergency care order on 5th September the CFA sought an interim care order in the District Court. The hearing ran late into the evening but all the evidence had not been heard. The judge said she would make the interim care order for a short period in the light of the concerns of the CFA and adjourned the matter for 12 days. On this occasion again time ran out and one witness had still to complete her evidence. The judge made the interim care order for a week. Following this, lawyers for the mother made an Article 40 (habeas corpus) application to the High Court, where it was refused.

Two issues were argued before the High Court. The first related to the late service of documents by the CFA, contrary to the District Court Rules. Mr Justice Humphreys said that while this was raised in the District Court, it was for the purpose of having the proceedings dismissed, not seeking an adjournment in order to prepare for a full hearing, and that the objection was “legalistic”.

The second issue was that there had been a breach of fair procedure as the District judge had made the order without hearing all the evidence.

Mr Justice Humphreys had found that a “practical and pragmatic” solution where time was of the essence which resulted in the modification of fair procedures was not a breach of the principle of fair procedures per se. The test was one of proportionality.

Lawyers for the mother appealed this judgment to the Court of Appeal.

The President of the Court of Appeal, Mr Justice George Birmingham, asked senior counsel for the mother: “What are you seeking to achieve?”

Counsel: “That the original interim care order be set aside?”

President: “To send the child home?”

Counsel: “Not immediately.”

Mr Justice Edwards, also sitting, said: “There are only two options open to the court, to release the child from foster care or to refuse the application.”

Counsel replied: “We are not absolutely pushing for return.”

The President said: “Article 40 is classically for a prisoner being kept where the legality of the detention is questioned. There are concerns for a very young child. A statutory scheme is in existence. I struggle to see how Article 40 can be applied.”

Counsel for the mother argued that there had been a breach of procedure in this case on a par with other cases where Article 40 had been found to apply. She said what they were seeking was to put the care on a proper footing.

President: “You would be content with a situation where the child would remain in foster care on a voluntary basis and the case [seeking a full care order] to proceed?”

Counsel for mother: “Yes.”

Lawyers for the CFA accepted that there had been a procedural irregularity in the late service of reports, but argued that it was not such as to amount to a breach of constitutional fair procedures such to invalidate the subsequent order made, and pointed out that the mother’s lawyers had not sought an adjournment to take instructions, which would have been more in line with jurisprudence on the issue.

In relation to the truncated hearing, lawyers for the mother argued that the European Court of Human Rights had found that the taking of a new-born from its mother was an extremely harsh measure that should be avoided where at all possible. The CFA pointed out that the mother had lived with her baby in a residential unit for a number of months while the CFA assessed whether she could care for her child, and therefore this case was very different to that examined by the ECtHR. The making of the order on the basis of partial evidence was justified by the urgency of the matter.

The mother’s lawyers argued that the accumulated departures from fair procedures on the part of the CFA was disproportionate. A proportionate response to the perceived danger to the baby would have been seeking another emergency care order.

The CFA pointed out that the Supreme Court had warned that the courts should be very cautious when approaching child care cases with the “formidable remedy” of Article 40. It required more than just “a situation where there had been a mere legal error, or slight procedural impropriety, or where the jurisdiction of the court had been inadvertently exceeded.” Counsel for the CFA pointed out that the mother’s lawyers had not asked the District Court or the High Court for more time to read the reports in order to take proper instructions.

Dismissing the mother’s appeal, the President of the Court of Appeal said that the fact that the timeframe set out in the District Court Rules was not adhered to would not of itself provide a basis for an order under Article 40 of the Constitution.

In relation to the making of the order following a partial hearing of the evidence, including the opinion of the manager of the parent and baby unit that the child would be at risk in the care of her mother, the President said that the situation the District Judge found herself in was a very difficult one, but “her response was a very conscientious and responsible one.” While adjourning the matter, she made it clear this would be for the shortest possible time. “It seems to me that in those circumstances the judge in the District Court was doing everything in her power to avoid injustice.”

He added that the situation was an entirely unsatisfactory one. “What is very disturbing indeed is that something not very different occurred again on 17th September 2018. All too often judges when dealing with sensitive or urgent matters that demand late sittings are met with incredibly difficult practical hurdles to surmount.”

He also pointed out that the alternative suggestion of seeking an emergency care order was not canvassed during the proceedings.