High Court orders inquiry into mental capacity of girl in special care soon to be an adult – 2019vol2#13

During the Wards of Court list the Child and Family Agency asked the President of the High Court, who presides over the list, to conduct an inquiry into the mental capacity of a teenager in special care who would shortly reach her 18th birthday, with a view to making her a Ward of Court. The application was made ex parte (one side only present) The court agreed to ask the court medical visitor to conduct the inquiry and to allow the teenager’s continued detention on a short-term basis once she reached the age of majority. The court also appointed the same guardian ad litem who had been involved in the child care proceedings, and permitted the teenager to have legal representation.

The President of the High Court acceded to an application for an order pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 prohibiting the publication of any material that might identify the young girl as a person suffering with a medical condition.

The barrister for the CFA indicated to the court that there was a need for particular care in reporting as there was distinctive features and characteristic what would make the young person more identifiable as there was a “natural tendency to focus on the more sensational aspects” and he asked that any reporting to keep in mind that it was an extremely vulnerable young person with a traumatic history.

The court was told that due to the existence of special care proceedings in the High Court the young girl’s mother and guardian ad litem (GAL) were informed by the CFA that the ex parte application would be progressed and they were in attendance in court.

The reliefs sought were set out in the ex parte docket and the CFA requested the President to conduct an inquiry into wardship in the case and that if the court was satisfied to direct such an inquiry that the CFA sought to bring a number of interlocutory applications.

Judge: “I have looked at the petition and the affidavit of Professor [X] and Doctor [Y] who  both attest to the unsoundness of mind and the necessary conditions are met for making an inquiry.”

The barrister for the CFA told the court that a GAL had been appointed in the special care proceedings and had acted for a considerable time. The court was told that the CFA had found the existence of the GAL to be “extremely helpful” and asked the President to appoint her as the GAL in these proceedings given the complexity of the underlying situation and the extensive knowledge that the GAL could bring.

The court was told that the mother of the young person was a party actively involved in the child care proceedings and was legally represented by counsel in court, as the CFA had considered it appropriate to notify her of the proceeding and the CFA indicated that it had no objection to the mother’s participation in the proceedings.

The barrister for the CFA told the court that it was unusual for the young person to be represented but that in this case the young person was represented by counsel who had also previously brought proceedings challenging orders made in the High Court. These had not succeeded, however. He said that the CFA were mindful of the observations of the Supreme Court that the CFA would be bearing the costs and said that the CFA had no objection to the legal representation of the young person.

The CFA counsel told the court they were seeking, under the auspices of wardship jurisdiction, the continuation of the types of orders made in the childcare proceedings, for the continued detention of the young person in the residential unit past the date on which she reaches the age of majority.

An affidavit was before the court setting out the broader history of the young person and the barrister for the CFA told that court that since the summer efforts had been made to ascertain her mental health status. The court was told that an assessment was carried out by a doctor and that a report was prepared in September. The CFA and other parties had some queries and the doctor had responded by letter in October.

The doctor had recommended that community placement be attempted but this was not something that the CFA thought could be accepted. The court was told that that doctor gave the view at the time of his clinical assessment that the personality trait of the young girl did not point in the direction of lacking capacity and said that it may be appropriate to do another assessment.

Judge:  “That is not the view shared by professionals who have sworn affidavits.”

CFA barrister: “They are clear in their view expressed that the personality disorder and disordered thinking [means] that she lacked capacity. The professor had spent the entire day with the young person.”

The court was told that the CFA were seeking a continuation of the previous High Court orders made on a short-term basis on foot of a recommendation that the young person required an out-of-State placement in a medium secure unit with specific expertise. The court was told that the facilities in the United Kingdom exceeded the expertise the Irish services had and an identified secure mental health facility was due to carry out an assessment of the girl in mid-January.

The barrister said that following the assessment carried out by the professor and the doctor the CFA considered the orders sought necessary and that it was in the young girl’s best interests and also served the public interest.

CFA barrister: “A lack of capacity to make decisions around treatment, care and accommodation… in tandem and intertwined with difficulties, but an immediate and very serious risk to not just individuals but particular categories of person… and those risks were treated with great seriousness where there is a prior history of assault and sexual violence.”

The court was told that an incident in June precipitated the re-entry of the young person to special care and a search uncovered a large knife.

Judge: “… that is what is photographed and demonstrated … and a disturbing manuscript that sets out an intention to kill and mutilate a person.”

CFA barrister: “It has been treated as a definite threat… The young person is very upfront about this being her focus, while at same time wanting to attain a college degree… to have a career and become famous… Disordered thinking that is deep-seated.”

The judge had made an order for an inquiry on foot of the medical evidence before the court and the CFA were seeking the hearing of the motion to ensure that when the girl’s birthday was reached there would be a continuity of care. The CFA also stated that in light of the inquiry to be made orders confirming the representation and appointment of the GAL would be appropriate at that time and the CFA understood that there would be costs incurred for the parties present.

Judge: “This application arises in the context of a petition presented seeking to have the respondent to the proceedings taken under the protection of the court and made of ward of court. This is made in anticipation of her 18th birthday on [date]. She is the subject of an order of the High Court on 15th October this year under the child care legislation. That order provides for the respondent to be detained in accordance with the terms as a matter of law. That order is spent once majority occurs and the question arises as to what is to happen subsequent thereto as there is no lawful basis to detain after that date.”

The judge acceded to making the orders sought in respect of an inquiry and that a court medical visitor was to provide an independent view of the capacity or otherwise of the respondent. The court gave leave  to the CFA to bring a Notice of Motion for the continued detention on a short term basis at the unit to be made returnable for the following week. The court also appointed the same GAL to the proceedings in circumstance where she was involved in the child care proceedings. The court permitted the representation of the respondent by solicitor and counsel and made that order.