R. v Child and Family Agency & anor [2019] IEHC 808 (29 November 2019)

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Cite as: [2019] IEHC 808

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THE HIGH COURT
JUDICIAL REVIEW
[2019] IEHC 808
2018 No. 3 J.R.
BETWEEN
R (IDENTITY PROTECTED)
APPLICANT
AND
THE CHILD AND FAMILY AGENCY
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT of Mr. Justice Garrett Simons delivered on 29 November 2019
Introduction
1.       This matter comes before the High Court by way of an application for leave to apply for
judicial review. The Applicant is aggrieved that a series of care orders had been made in
respect of her three daughters pursuant to the Child Care Act 1991. This grievance is
expressed in very general terms, and it is not at all clear from the pleadings which orders
in particular it is sought to challenge. The statement of grounds formally challenges a
number of orders made by the District Court. It appears, however, from the numerous
affidavits filed by the Applicant, and from her oral submissions, that the actual target of
the proceedings are certain orders made by the Circuit Court in February and March 2017.
2.       This presents an immediate difficulty for the Applicant in that the judicial review
proceedings were not instituted until 2 January 2018. The proceedings have thus been
brought outside of the three-month time-limit provided for under Order 84, rule 21 of the
Rules of the Superior Courts (as amended in 2011). It will be necessary, therefore, for
the Applicant to obtain an extension of time for the bringing of these proceedings.
3.       The application for leave to apply for judicial review in the present case had first been
moved before the High Court (Haughton J.) on an ex parte x basis on 2 January 2018.
The High Court directed that the respondents should have an opportunity to address the
court on inter alia (i) the question of whether an extension of time should be granted, and
(ii) the question of whether the application should proceed in the light of an appeal then
pending before the Court of Appeal.
4.       Matters are further complicated by the fact that the Applicant instituted a parallel set of
judicial review proceedings on 2 January 2018. These proceedings have since been heard
and determined against the Applicant by the High Court (MacGrath J.). An appeal has
been brought against that judgment, and is pending before the Court of Appeal.
5.       The inter partes application for leave to apply for judicial review came on for hearing
before me yesterday (28 November 2019). The Applicant appeared as a litigant in
person. The Child and Family Agency was represented by Nathan Jones, BL, and the
Director of Public Prosecutions was represented by Kate Egan, BL.
Orders under the Child Care Act 1991
6.       It may assist in an understanding of the subsequent complicated procedural history
before the High Court to summarise, at the outset of this judgment, the nature of the
Page 2 ⇓
orders which had been made pursuant to the Child Care Act 1991. The Applicant
confirmed at the hearing before me that the complaints in these judicial review
proceedings are directed to orders made in respect of her eldest daughter. (The parallel
judicial review proceedings are said to be directed to orders in respect of her other two
daughters). See also paragraph 31 of the Applicant’s affidavit of 27 November 2019.
7.       The Applicant has exhibited five orders of the District Court in respect of her eldest
daughter: (i) an emergency care order dated 18 November 2016; (ii) an interim care
order dated 25 November 2016; (iii) an interim care order extension dated 7 December
2016; (iv) an interim care order extension dated 4 January 2017; and (v) a (full) care
order pursuant to Section 18 of the Child Care Act 1991. These orders had all been
appealed to the Circuit Court. The emergency care order was affirmed by the Circuit
Court (Judge Comerford) on 8 February 2017. An affidavit has been filed in the
proceedings by a solicitor from the firm Comyn Kelleher Tobin Solicitors who had
represented the Child and Family Agency at the Circuit Court. It appears from this
affidavit that the Circuit Court dismissed the appeal on the basis that the emergency care
order had expired on 25 November 2016, i.e. several months prior to the hearing of the
appeal.
8.       The various interim care orders and the Section 18 care order had been affirmed by the
Circuit Court (Judge Ó Donnabháin) on 7 March 2017. It appears from the affidavit filed
by a solicitor from Comyn Kelleher Tobin Solicitors for the Child and Family Agency that
the Circuit Court heard evidence in relation to the welfare of the eldest daughter from her
social worker. The Applicant had purported to serve a number of summonses directing
the attendance before the Circuit Court of witnesses, including a named guard and of her
daughter.
9.       With the single exception of the Section 18 care order, all of the orders at issue are of a
type which is expressly time-limited under the Child Care Act 1991. An emergency care
order is effective for a period of eight days or such shorter period as may be specified in
the order. An interim care order shall not exceed a period of twenty-nine days (save with
the consent of the parent having custody of the child or of the person acting in loco
parentis).
10.       A (full) care order had been made pursuant to Section 18 of the Child Care Act 1991 on
10 January 2017. This care order was for a period of [figure redacted] months and
specified to expire on the day before the eldest daughter’s eighteenth birthday on
[precise date redacted] 2017.
11.       In order to respect the privacy of the eldest daughter, the precise dates have been
omitted. It should be noted, however, that the eldest daughter had reached the age of
majority, i.e. eighteen years of age, prior to the institution of these judicial review
proceedings. The eldest daughter was, therefore, no longer a “child” as defined for the
purposes of the Child Care Act 1991.
Three sets of proceedings before the High Court
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12.       The within proceedings are, in fact, the third set of High Court proceedings which the
Applicant has instituted arising out of orders made by the District Court and the Circuit
Court. A brief summary of each of the three sets of proceedings is set out below.
(i). 2017 No. 68 IA
13.       The first set of proceedings were instituted on 4 July 2017. The proceedings were
instituted by way of originating notice of motion. No statement of grounds had been filed
in those proceedings.
14.       The High Court (Keane J.) made an order on 11 November 2017 refusing to extend time
to enter judicial review proceedings. The Applicant then brought an appeal against that
refusal of an extension of time. The appeal was dismissed by the Court of Appeal by
order dated 5 November 2018.
(ii). 2018 No. 2 J.R.
15.       The Applicant next instituted two sets of judicial review proceedings in January 2018. The
first in time bears the Record Number 2018 No. 2 J.R. These proceedings were ultimately
heard and determined by the High Court (MacGrath J.). A written judgment was
delivered by the High Court on 31 July 2018, R. v Child and Family Agency [2018] IEHC 469.
16.       The statement of grounds filed in those proceedings is in almost identical terms to that
filed in the within proceedings. In each instance, the principal relief is directed towards
vacating orders of the District Court, i.e. as opposed to the subsequent orders made on
appeal by the Circuit Court.
17.       It appears, however, that the Applicant subsequently sought, in the affidavits which she
swore in the proceedings, to reorient the case as one directed to a decision of the Circuit
Court on 26 September 2017.
(iii). 2018 No. 3 J.R.
18.       The third set of proceedings are the within proceedings, Record No. 2018 No. 3 J.R.
19.       These proceedings were also initiated on 2 January 2018. On that date, an ex parte
application for leave to apply was made to the High Court (Haughton J.). The principal
reliefs set out in the statement of grounds are as follows.
“1. Judicial Review to seek:
2. Order vacating District Court emergency care orders, interim care orders and care
orders created since 18 November 2016 to 28 November 2017
3. Order to return my three daughters [Names and the dates of birth have been
redacted for the purposes of this judgment] to me immediately
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4. Issac Wunder Order and Injunction preventing Respondents further harassment
5. Further and other relief.”
20.       Eleven grounds are then set out upon which the relief sought above is claimed as follows.
1. All District Court emergency care orders, interim care orders and care orders
created between 18 November 2016 and 28 November 2017 are erroneous and
based on details known to be inaccurate.
2. No due process was followed by the Respondents or acting judges
3. The detention of my three daughters by Respondent collusion is unlawful and
amounts to abduction and false imprisonment contrary to sections 15 and section
17 Non-Fatal Offences against the Person Act 1997
4. Sworn affidavits by Respondents contain details known to be untrue amounting to
perjury that continues to ensure unlawful detention of my three daughters thereby
amounting to a significant tort against each of my family members
5. It is paramount Judicial Review be lodged to consider lawfulness of Applicant’s
three daughters detention and to prevent further miscarriage of justice
6. I am fully competent to care for my three daughters
7. My three daughters want to return home
8. My three daughters are unlawfully detained against their will
9. As the mother of my three daughters I am the most suitable person to look after
their welfare and interests
10.       That the best interests of my three daughters are served by being cared for by their
mother
11.       Such other grounds as may be adduced, the exhibits reasons to be offered on the
nature of the case which application will be based upon inter alia
21. As appears, the pleadings are directed to orders of the District Court. The Applicant has
since sworn a number of affidavits in the proceedings. As in the first set of judicial review
proceedings, the Applicant has sought to reorient the proceedings so as to challenge the
subsequent orders of the Circuit Court affirming the District Court orders.
22. See, for example, paragraph 2 of the affidavit sworn by the Applicant on 18 January
2018.
“2. I say High Court case number 2018 3 JR relates to two Circuit Court appeal
hearings 1) Tralee Circuit Court appeal hearing on 8 February 2017 before acting
Judge Francis Comerford on foot of appeal of Killarney District Court order created
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in District Area 17, County Kerry and 2) Cork Circuit Court appeal hearing the
following month on 7 March 2017 before acting Judge Sean O’Donnabhain on foot
of appeals of district court orders created between 25 November 2016 and 19
January 2017 in District Area 20, County Cork: the resulting Five Circuit Court
orders are marked Exhibits A, B, C, D and E.”
23.       No application has ever been made by the Applicant to amend her statement of grounds.
In the circumstances, it is not open to the Applicant to seek to reorient her proceedings in
this way. There is an obligation on an application to plead their case with precision. See
Order 84, rule 20. The only orders in respect of which relief has been sought in the
statement of grounds are those of the District Court. Any challenge to those orders is
inadmissible in circumstances where the Applicant chose to exercise her statutory right of
appeal against those orders to the Circuit Court.
24.       However, given that the Applicant is a litigant in person, it seems preferable not to decide
the case on a pleading point. Instead, I propose to address de bene esse the separate
objection that the proceedings are inadmissible by reason of delay.
Three Month Time-Limit
25.       Judicial review proceedings are subject to a three-month time-limit under Order 84, Rule
21 of the Rules of the Superior Courts (as amended in 2011).
“21.(1) An application for leave to apply for judicial review shall be made within three
months from the date when grounds for the application first arose.
(2) Where the relief sought is an order of certiorari in respect of any judgement, order,
conviction or other proceeding, the date when grounds for the application first
arose shall be taken to be the date of that judgement, order, conviction or
proceeding.”
26.       It is immediately apparent that these proceedings have been instituted outside the three-
month time-limit. The principal complaints made by the Applicant are directed to orders
of the Circuit Court made in February and March 2017. These proceedings were not
issued for some nine months thereafter (2 January 2018).
27.       The High Court has a discretion under Order 84, rule 21(3) to grant an extension of time.
“(3). Notwithstanding sub-rule (1), the Court may, on an application for that purpose,
extend the period within which an application for leave to apply for judicial review
may be made, but the Court shall only extend such period if it is satisfied that:
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for
leave within the period mentioned in sub-rule (1) either:
(i) were outside the control of, or
(ii) could not reasonably have been anticipated by
Page 6 ⇓
the applicant for such extension.
(4) In considering whether good and sufficient reason exists for the purposes of sub-
rule (3), the court may have regard to the effect which an extension of the period
referred to in that sub-rule might have on a respondent or third party.”
28.       The application of this test has recently been considered by the Supreme Court in its
judgment in O’S v Residential Institutions Redress Board [2018] IESC 61; [2019] 1
I.L.R.M. 149.
“I have concluded that the case law cited above, insofar as it applies to the
extension of the time specified under O. 84 for the bringing of judicial review
proceedings, makes clear that the jurisdiction which the Court is to exercise on an
application to extend time is a discretionary jurisdiction which must be exercised in
accordance with the relevant principles in the interests of justice. It clearly
requires an applicant to satisfy the Court of the reasons for which the application
was not brought both within the time specified in the rule and also during any
subsequent period up to the date upon which the application for leave was brought.
It also requires the Court to consider whether the reasons proffered by an applicant
objectively explain and justify the failure to apply within the time specified and any
subsequent period prior to the application and are sufficient to justify the Court
exercising its discretion to extend time. The inclusion of sub-rule (4) indicates
expressly that the Court may have regard to the impact of an extension of time on
any respondent or notice party. The case law makes clear that the Court must also
have regard to all the relevant facts and circumstances, which include the decision
sought to be challenged, the nature of the claim made that it is invalid or unlawful
and any relevant facts and circumstances pertaining to the parties, and must
ultimately determine in accordance with the interests of justice whether or not the
extension should be granted. The decision may require the Court to balance rights
of an applicant with those of a respondent or notice party. The judgments cited do
not, in my view, admit of a bright line principle which precludes a court taking into
account a relevant change in the jurisprudence of the courts when deciding whether
an applicant has established a good and sufficient reason for an extension of time.
Further, the judgments cited above do not envisage any absolute rule in relation to
what may or may not be taken into account or constitute a good reason or a good
and sufficient reason. The Court, in an application for an extension of time, is
exercising a discretionary jurisdiction and in the words of Denham J. in de Roiste,
‘[t]here are no absolutes in the exercise of a discretion. An absolute rule is the
antithesis of discretion. The exercise of a discretion is the balancing of factors - a
judgment.’”
29.       The Applicant seeks to justify her delay in bringing these proceedings under two broad
headings as follows. First, it is said that she had formed an intention to challenge the
orders of the Circuit Court within the three-month period allowed, and had, in fact,
attempted to institute proceedings. The Applicant relies in this regard on the earlier
(irregular) proceedings instituted by her on 4 July 2017.
Page 7 ⇓
30.       Secondly, it is said that the Applicant had to prioritise the welfare of her daughters during
the period after the making of the Circuit Court orders, and that she was unable to
prepare the necessary paperwork for a proper application for judicial review during this
time because of the distress she was enduring.
Findings of the court on extension of time
31.       I have concluded that the criteria for the grant of an extension of time have not been met
on the facts of this case. First, in considering whether or not there is good and sufficient
reason to extend time, it is open to a court to consider the strength or otherwise of the
judicial review proceedings. It is also appropriate to consider whether it would serve any
useful purpose to allow the out-of-time proceedings to be pursued. The issues raised in
the within proceedings are entirely moot. The orders the subject-matter of the appeals to
the Circuit Court were all time-limited orders. The emergency care orders and the interim
care orders were subject to prescribed maximum periods. The (full) care order made
pursuant to Section 18 of the Child Care Act 1991 lapsed on the eldest daughter reaching
the age of eighteen years. The proceedings are, therefore, moot. The Applicant cannot
secure any practical benefit from the proceedings.
32.       The Applicant argues that the proceedings are not moot, and referred in the course of her
submissions to the judgment of the Supreme Court in Child and Family Agency v. McG
[2017] 1 I.R. 1., [51]
“The respondents submitted that the appeal is moot. I would not accept that
contention. As was pointed out in K.A. v. Health Service Executive [2012] IEHC 288,
[2012] 1 I.R. 794, a procedural flaw of a fundamental nature, at the outset of
a custody case, may have ongoing effects, which necessarily have continuity.
Moreover, the issues arising bear not only on this case, but may have
consequences in other cases. Thus, it seems to me that this case should be seen in
the same light as those cases, such as Condon v. Minister for Labour [1981] I.R.
62, and O’Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62,
[2007] 1 IR 328, where the court should determine the appeal in the interests of
the proper administration of justice (cf. Lofinmakin v. Minister for Justice
[2013] IESC 49, [2013] 4 IR 274).”
33.       The circumstances of the case are distinguishable from those at issue in Child and Family
Agency v. McG. The Applicant’s eldest daughter is no longer subject to any orders under
the Child Care Act 1991. There is no question, therefore, of any alleged invalidity in
either the District Court or the Circuit Court orders having any ongoing effects. Of
course, there will be some circumstances where judicial review proceedings will be
appropriate notwithstanding that the decision or orders impugned are moot. It might, for
example, be appropriate to remedy a breach of an individual’s rights even in
circumstances where that breach is historic (as opposed to ongoing). In the present case,
any alleged breach was to the eldest daughter’s rights. The eldest daughter had already
achieved her majority before these proceedings were instituted. If she had wished to do
so, it would have been open to her to institute proceedings in her own name.
Page 8 ⇓
34.       As it happens, the eldest daughter held a watching brief on these proceedings and, in the
circumstances outlined below, counsel on her behalf confirmed that she does not wish to
participate in the proceedings nor to be heard by the court in relation to same.
35.       The Applicant has not identified any issue of principle which may be of relevance to other
cases. The statement of grounds fails to articulate any criticism of the Circuit Court
orders. There is no reference to the Circuit Court orders at all. Insofar as it is either
necessary—or indeed appropriate—to consider any complaints made in respect of the
Circuit Court in the various affidavits filed by the Applicant, these are in the most vague
and generalised terms. Same do not disclose any arguable ground of judicial review.
36.       The second reason for concluding that an extension of time should not be granted in this
case is the adverse effect it would have on a third party, namely the Applicant’s eldest
daughter. The Applicant has consistently sought to implicate her daughter in the various
legal proceedings. The Applicant purported to issue a subpoena against her own daughter
in the context of the Circuit Court appeal and these High Court proceedings. In the
course of her submissions yesterday afternoon (28 November 2019), the Applicant asked
this court to issue a “bench warrant” against her own daughter to compel her attendance
at the proceedings. At that stage, counsel on behalf of the daughter, who had been
maintaining a watching brief, intervened. Mr Darren Lehane, BL, confirmed that his client
did not wish to have any part in the proceedings.
37.       Were this court to grant an extension of time and to allow these judicial review
proceedings to be pursued, it seems to me that there is a real risk that it would adversely
affect the Applicant’s eldest daughter. The Applicant is intent on dragging her own
daughter before the courts.
38.       The third reason for refusing an extension of time is that the circumstances giving rise to
the delay were not outside the control of the Applicant. It is clear from the sequence of
events that the Applicant had been in a position to institute proceedings much earlier than
2 January 2018. It will be recalled that proceedings had been issued on 4 July 2017, that
is some four months after the last of the relevant Circuit Court orders. These proceedings
were misconceived in that they sought, in effect, an extension of time on a freestanding
basis. No statement of grounds was ever filed in the earlier proceedings.
39.       The Applicant has since sought to amend her hand by instituting the within proceedings.
It would undermine the object and purpose of the statutory time-limit if an applicant were
entitled to rely on defective proceedings to justify instituting a second set of proceedings
well outside the three-month time-limit. To do so would be to place a premium on a
person’s lack of knowledge of proper legal requirements.
Position of Director of Public Prosecutions
40.       For the sake of completeness, it should be observed that there is no case whatsoever
pleaded as against the Director of Public Prosecutions. It is apparent from the affidavits
filed on behalf of the Applicant that she is aggrieved by what she perceives to have been
Page 9 ⇓
harassment of her by members of An Garda Síochána. This has, apparently, been the
subject of earlier proceedings.
41.       At all events, without making any finding in relation to the merits or otherwise of this
complaint, there is no causal link between same and the position of the Director of Public
Prosecutions. The Director does not have operational responsibility for An Garda
Síochána.
42.       As it happens, most of the alleged events relied upon by the Applicant for the purposes of
the present proceedings had also been ventilated in the first set of judicial review
proceedings, 2018 No. 2 J.R. This aspect of the case was addressed as follows by
MacGrath J. in his judgment of 31 July 2018. See R v. Child and Family Agency
[2018] IEHC 469, [21] and [22]
“Thus the factual basis which the applicant relies upon relates primarily and
significantly to operational matters concerning individual members of An Garda
Síochána, rather than to the role of the DPP in the prosecution of an offence.
In my view the actions relied upon as against the DPP to ground the application can
not, on the facts averred to, as a matter of law, be laid against the Director of
Public Prosecutions who is not responsible, vicariously or otherwise, for the
operational actions of An Garda Síochána in circumstances such as this; and in any
event cannot found an application such as this. No authority has been cited to the
contrary and no factual basis has been averred to in support such proposition in
this case. If there is a liability for the actions of An Garda Síochána, and the Court
expresses no opinion on this, it does not lie against the DPP and in the
circumstances I am not satisfied that the applicant has made out a prima facie
stateable case or has discharged the burden of proof which is imposed upon her in
an application such as this, as against the second respondent.”
43.       I respectfully adopt this analysis as directly applicable to the facts of the case before me.
Reporting restrictions
44.       These proceedings are subject to reporting restrictions in the following circumstances.
Whereas the Applicant’s eldest daughter is not a minor, one of her sisters is underage and
is subject to a care order. Given that there is a considerable overlap in the factual
background between the two sets of judicial review proceedings issued on 2 January
2018, I am concerned lest the disclosure of the identities of the Applicant and/or her
eldest daughter in the context of the proceedings before me could inadvertently allow the
identity of the minor child to be deduced.
45.       I will, therefore, make an order prohibiting the disclosure of the identity of either the
Applicant and/or any of her daughters. Without prejudice to the generality of the
foregoing, the names of those individuals, their addresses and their dates of birth are not
to be disclosed.
Conclusion
Page 10 ⇓
46.       The application for leave to apply for judicial review is dismissed. This is done primarily
on the basis that the proceedings are inadmissible by reason of delay, and that it would
be inappropriate in the circumstances of this case to grant an extension of time pursuant
to Order 84, rule 21 of the Rules of the Superior Courts (as amended in 2011).
47.       I would have dismissed the proceedings in any event on the basis that no case is pleaded
in respect of the Circuit Court orders. Nor is there any case properly pleaded as against
the Director of Public Prosecutions.


Result:     Application for judicial review dismissed, costs in favour of the two respondents.




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