[2018] IEHC 650
[2018 No. 1376 SS]
SECOND NAMED APPLICANT
RESPONDENT
EX TEMPORE JUDGMENT of Mr. Justice MacGrath
delivered
on the 8th
day
of November, 2018.
1. This is an application pursuant to Article 40.4 of the
Constitution
in respect of the alleged unlawful
detention
of a
child,
Q.
F.,
who
was
born in October, 2018 and
who
is the subject of an emergency
care
order made in the
District
Court
on 1st November, 2018 made under s. 13 of the
Child
Care
Act 1991 (" the Act of 1991 ").
2. This application is brought by the
first
named applicant, the
child's
mother, and on behalf of her son, the second named applicant. The application is grounded on the affidavit of applicant's solicitor, Mr. Iain Robertson, sworn on 6th November, 2018. He has therein set out the
factual
background, none of
which
facts
are
challenged
on this application.
3. The
first
named applicant has two older
children,
both of
whom
are in
care.
The
first
child
who
was
born in 2014 is the subject of a
care
order made under s. 18 of the Act of 1991. The order is operative until the
child
reaches the age of 18. It
was
made on
consent
in
circumstances
where
the
child
is to remain in the
care
of relatives. The
first
named applicant's second
child
was
born in 2016 and is the subject of a
care
order made pursuant to s. 18 of the Act of 1991, to be reviewed on 28th November, 2018. These orders
were
made in April, 2018. The order in respect of the second
child
was
made on
consent
in
circumstances
where
the
child
is being
cared
for
by another relative.
When
making the order, the
Court
specified various steps to be taken prior to a review on 28th November, 2018.
4. In April, 2018, the
first
named applicant
confirmed
to a social
worker
to the two older
children
(" Social
Worker
A "), that she
was
pregnant. Social
Worker
A advised that the
Child
and
Family
Agency,
would
apply
for
a
care
order
when
the baby
was
born. In June, 2018, Social
Worker
A
confirmed
to the
first
named applicant that a
care
order
would
be sought in respect of the
child.
5. On 23rd October, 2018, the
Child
and
Family
Agency
convened
a
child
protection
case
conference
which
recommended that an emergency
care
order be sought
when
the baby
was
born "
due
to the history
with
the previous two
children
and the risk posed to the
child".
6. On the
day
the mother and
child
were
discharged
from
hospital, the respondent applied to the
District
Court
for
an emergency
care
order pursuant to s. 13 of the Act of 1991.
7. Section 13 of the Act of 1991 provides:-
An emergency
care
order subsists
for
a maximum period of eight
days,
and may be made
for
a shorter period.
When
such an order is made the
District
Judge has ancillary powers in relation to the protection of a
child.
Section 13(4)(
c)
provides that an application
for
such order may be made ex parte , if the judge is satisfied that the urgency of the matter so requires.
8. An appeal
from
an emergency
care
order
does
not stay the operation of the order (see s. 13(5)).
9.
What
is evident
from
the
wording
of the section is that to exercise jurisdiction to make an emergency
care
order, the
District
Judge must be satisfied that there is an immediate and serious risk to the health or
welfare
of the
child.
On such application the best interests and
welfare
of the
child
is the paramount
consideration.
10. On the morning of the application Mr. Robertson
was
served
with
notice of the application. It
was
grounded upon the affidavit of Social
Worker
A in
which
she outlined the
concerns
of the
Child
and
Family
Agency regarding the " immediate health and
welfare
of the
child
". These
concerns
included:-
Social
Worker
A averred that there
was
reasonable
cause
to believe that the threshold
criteria
specified in s. 13 had been met; and that
was
in the best interests of the
child
to have him placed in
care
of the
Child
and
Family
Agency. She
was
of opinion that
without
the protection of an emergency
care
order there
would
be an immediate and serious risk to the health or
welfare
of the
child.
11. This
was
not the only evidence
which
was
called
on the hearing of the application. Mr. Robertson avers
while
that he
was
served
with
the affidavit and notice of the application on the morning of the hearing, at 2.00 p.m. the solicitor representing the
Child
and
Family
Agency informed him that a previous social
worker
who
had been involved in the
care
of the two older
children
(" Social
Worker
B ")
would
also be
called
to give evidence. He protested that he
was
not on notice and had not been provided
with
a report
from
Social
Worker
B providing an outline of her evidence.
12. The
case
commenced
at 2.30 p.m.
Counsel
on behalf of the
child's
mother raised a preliminary objection to the proposed
calling
of Social
Worker
B as a
witness.
The
first
reason
was
that received adequate notice of her evidence had not been received and in this regard, the a report
from
Social
Worker
B had not been provided. The second
was
that her evidence
was
not relevant to the application
for
an emergency
care
order. Such application required the
Child
and
Family
Agency to establish that there
was
an immediate and serious risk to the health and
welfare
of the particular
child.
Social
Worker
B
was
not the social
worker
who
had been allocated to the
child
and had not had any
contact
with
the
child's
mother since April, 2018. It
was
therefore submitted to the
District
Judge that Social
Worker
B's evidence
was
not relevant to the application before the
court.
13. There
was
also a
discussion
regarding the applicable law
with
counsel
for
the
child's
mother placing particular emphasis on the requirement of a present risk to the
child's
health or
welfare.
The
District
Judge stated that she
would
hear the evidence of Social
Worker
A and thereafter
determine
whether
she
would
hear the evidence of Social
Worker
B.
14. The hearing
continued
for
some
considerable
time, the
District
Judge and the parties' representatives
working
late into the evening
with
the judge ultimately
delivering
judgment just before 10.00 p.m. She heard not only the evidence of Social
Worker
A but also that of Social
Worker
B. In addition, she heard the evidence of the
first
named applicant, the
child's
mother.
15. The evidence indicated that the
child's
mother had behaved appropriately
with
the
child
since its birth in October, 2018 and there
were
no
concerns
in relation to
drugs,
alcohol misuse, or
domestic
violence.
Counsel
for
the
child's
mother submitted that the
Child
and
Family
Agency had not explored alternative options to an application
for
a
care
order.
While
it
was
not the preference of the
child's
mother to attend a mother and baby home, she stated that she
would
do
so if it meant that she
would
not be separated
from
her baby. There
was
also a
discussion
as to
when
such a place might become available.
16. According to Mr. Robertson, Social
Worker
A in evidence accepted that all
was
going
well
at the present time and had she not known of the previous
concerns
from
her own knowledge and experience of the
first
named applicant since April, 2018, she
would
not have brought the s. 13 application. She accepted that the
child's
mother had
cooperated
fully
with
the social
work
department
since April, 2018 and that she had attended all medical appointments and
furthermore
that she had been appropriate in
caring
for
the
child
since he
was
born. The social
worker
also accepted that there
were
no
current
concerns
in respect of
drugs,
alcohol misuse and or
domestic
violence.
17. The
District
Judge
decided
to hear the evidence of Social
Worker
B
with
particular regard to the alleged neglect by the
child's
mother of the two older
children.
Social
Worker
B accepted that she
was
not the
current
social
worker
and that she had no
contact
with
the
child's
mother since April, 2018. Mr. Robertson avers that the
District
Judge queried Social
Worker
B on
whether,
based on the mother's
care
of the two other
children,
she believed that there
was
an immediate and serious risk to the health and
welfare
of the
child.
It seems that her original answer
was
somewhat equivocal but
when
pressed, she responded in the affirmative. At para. 14 of his affidavit, Mr. Robertson avers that the
District
Judge queried
whether
the
first
named applicant lacked the ability to parent, or the
capacity
to parent in the long term, to
which
Social
Worker
B replied " she had the ability to parent in the short term but lacked the
capacity
to parent in the long term ".
18. The
child's
mother, in evidence, informed the
court
that she had made all necessary arrangements
with
regard to the baby. She produced an inventory of items required
for
the baby's
care
which
had been approved by the public health nurse. She gave evidence that accommodation had been made ready
for
the baby and produced photographs of this accommodation to the
District
Judge. She told the
District
Judge that she had bonded
with
the baby, had
cared
for
and nurtured the baby since birth. She produced records of each
feed
and the amount
consumed
on each
feed
together
with
evidence of nappy
changes
and
care.
The
cross-examination
of the
child's
mother included questioning in respect of the alleged neglect of the two older
children.
19. A legal argument thereafter ensued. It
was
submitted on behalf of the
Child
and
Family
Agency that the threshold
for
an order pursuant to s. 13 had been met. This
was
contested
by
counsel
for
the
child's
mother on the basis that the
Child
and
Family
Agency had
failed
to adduce evidence of an immediate and serious risk. Mr. Robertson avers that the evidence adduced by the
Child
and
Family
Agency related to past
concerns
in respect of the two other
children.
Counsel
for
the mother relied on K. and T. v.
Finland
(2003) 36 EHRR 18, a
decision
which
emphasised the bond between the mother and her new born
child.
Counsel
also referred to the
constitutional
presumption of it being in the best interests of the
child
for
it to be
with
his or her natural mother.
20. The
District
Judge
delivered
her
decision
and
found
that the respondent had adduced evidence of neglect in respect of the two older
children
and, according to Mr. Robertson's affidavit, she
determined
that the allegations of neglect in respect of the two older
children
had been proven and that the test regarding the threshold as set out in
caselaw
had been satisfied. The
District
Judge
concluded
that the interests of the
child
dictated
that he be taken into
care.
This
was
proportionate because there
was
reasonable
cause
to believe that there
was
an immediate and serious risk to his health and
welfare
on the basis of the evidence adduced. Mr. Robertson avers at para. 18 of his affidavit, as I understand it, that the
District
Judge stated that this
was
a temporary emergency
care
order and other options ought to have been explored but that the
court
found
that there
was
a reasonable
cause
to believe that there
was
an immediate and serious risk to the health and
welfare
of the
child.
The
care
order
was
made
for
the eight
day
period and the baby
was
taken into the
care
of the
Child
and
Family
Agency.
21. A
fundamental
part of the
case
made by the
child's
mother on this application is that the
child
has been unlawfully
detained
in the
custody
of the
Child
and
Family
Agency and has been separated
from
her at a
crucial
stage in the bonding process between mother and baby.
22. There are two other matters that ought to be addressed. An application
for
an interim
care
order is
due
to be heard today, Thursday, 8th November, 2018, a
day
after this
case
was
heard and two
days
after the initial application
for
an inquiry under Article 40
was
first
moved. Second, it became evident
during
the
course
of the
case
that in addition to the interim
care
order hearing, an appeal has been brought by the
child's
mother against the emergency
care
order and this is also listed
for
hearing today, on Thursday, 8th November, 2018, before the
Circuit
Court.
23. The
first
named applicant makes a number of
complaints
in respect of the hearing in the
District
Court
and the manner in
which
the
District
Judge arrived at her
conclusion.
The
first
named applicant on her own behalf and the behalf of the second named applicant,
claims
entitlement to bring Article 40.4 proceedings on the
following
grounds:-
(i) The
District
Court
judge applied an incorrect test to
determine
that the threshold under s. 13 had been met. That test required that the
court
be satisfied that there
was
an immediate and serious risk to the health and
welfare
of the
child
in this
case.
The
District
Court
judge
determined
that there
were
allegations of neglect in respect of the two other
children
which
were
proven and she
failed
to
consider
adequately or at all, the evidence that the
child's
mother, at all times
during
the pregnancy and post pregnancy, had been appropriate in
caring
for
the
child.
It is
contended
that in so
doing
the
District
Court
judge
failed
to have appropriate regard
for
the
constitutional
rights of the
child
to be
cared
for
and nurtured by his natural mother. It is also
contended
that the applicant's rights under s. 3 of the European
Convention
on Human Rights Act 2003 and in particular, Article 8 of the European
Convention
on Human Rights regarding the right to
family
life, have been breached.
(ii) The emergency
care
order
was
brought
without
adequate notice - two
days'
notice ought to have been given but this had not been
done.
The respondent had
failed
to adduce evidence of the urgency of the
case
or that any such urgency required that the application be made
without
appropriate notice.
(iii) There
was
a
fundamental
breach of the rules of natural and
constitutional
justice in that the applicants had not been given adequate notice that Social
Worker
B
would
give evidence or of the nature of the evidence that she might give. There had been a
failure
to produce a social
work
report
detailing
the evidence upon
which
the application
would
be based and the affidavit accompanying the application
contained
only scant
details
of the grounds upon
which
reliance
would
be placed. In this regard, Ms. Blake S.
C.
places particular emphasis on the
fact
that this
was
not an unexpected or unforeseen application and that the respondent
was
aware
from
about April or May, 2018 that such an application
would
be made. Therefore, the
Child
and
Family
Agency had ample time to give appropriate notice and provide
full
details
of the evidence that they might adduce. It is therefore
contended
that there has been a
fundamental
breach of the
constitutional
rights of the applicants and that in the
circumstances
the
continued
detention
of the
child
cannot
be said to be in accordance
with
law.
(iv) The applicants therefore seek to
challenge
the lawfulness of the
detention
of the
child
on the basis that the hearing before the
District
Court
proceeded in breach of
constitutional
rights and that there
were
fundamental
errors of law in the reasoning of the
District
Judge.
Counsel
for
the applicants emphasises that no evidence
was
adduced before the
District
Judge of an immediate and serious risk to the
child,
and that on the evidence there
was
no basis upon
which
the
District
Judge
could
have
come
to such a
conclusion.
She highlights that the best interests and
welfare
of the
child
were
the paramount
consideration
in an application such as this.
(v) Ms. Blake S.
C.
argues that the s. 13 order is a nullity and should be
declared
as such so that
when
the s. 17 application
comes
before the
court,
there is effectively a
clean
slate
without
the potential influence of a pre-existing emergency
care
order on the proceedings. She emphasised that such an order may have a
continuing
and lasting effect in the
child
care
proceedings in their entirety. She referred to the necessity to turn back the
clock
in this regard.
24. The application
was
initially moved before this
Court
on the afternoon of Tuesday, 6th November, 2018 and the
Court
directed
that an inquiry should be undertaken into the legality of the
child's
detention
pursuant to the
care
order. The
Child
and
Family
Agency
was
placed on notice of the application and the inquiry proceeded before the
Court
on
Wednesday,
7th November, 2018.
25. Mr.
Costelloe
S.
C.
on behalf of the respondent
contends
that not alone is there no invalidity on the
face
of the order itself but that the
circumstances
pertaining here are
far
removed
from
those
which
were
considered
in S.McG. v.
Child
and
Family
Agency [2017] 1 I.R. 1. He referred to the practicalities of the
case;
the order
will
soon expire and any such order
will
be superceded by an interim
care
order if one is made. He questions
why
it took a number of
days
for
this application to be brought - although it must be acknowledged that
counsel
for
the applicants advised that this
was
due
to procedures in place and the obtaining of appropriate opinions before legally aided representation
can
be
confirmed.
He also submitted that an important
factor
in the
determination
of
whether
an order under Article 40 ought to be made is that an appeal has been lodged and is listed to be heard in the
Circuit
Court
on the same
day
that the interim
care
order application is scheduled
for
hearing in the
District
Court.
26. The respondent
does
not accept that there is evidence that the obtaining of the order under s. 13 might give rise to a prejudice in the s. 17 proceedings.
27.
Counsel
for
the respondent also submits that an application
for
an adjournment
was
not made and that the level of breach of procedures, alleged or proven, is not as significant as existed in S.McG .
Further,
the application in this
case
concerned
a
care
order
which,
by
definition,
was
an emergency one. He submits that there
was
no
fundamental
denial
of justice or
fundamental
breach of
fair
procedures such as this
Court
should intervene on an application
for
an inquiry under Article 40.
While,
without
necessarily
conceding
that such is the
case,
if there are infirmities and
frailties
in the ruling of the
District
Judge, any such matter may more properly be
dealt
with
by
way
of judicial review or appeal. The respondent
contends
there
was
no egregious breach of rights.
28. It is not alleged that there is an invalidity on the
face
of the order.
29. Significant reliance is placed on the
decision
of the Supreme
Court
in S.McG. v.
Child
and
Family
Agency [2017] 1 I.R. 1. In that
case,
it
was
argued by the
Child
and
Family
Agency that Article 40.4 inquiries
were
inappropriate in
child
care
matters and that the transfer of
custody
on
foot
of an impugned order
did
not
constitute
a
detention.
There
was
also
debate
concerning
the application of s. 23 of the Act of 1991 and in particular as to
whether
the
court
could
of its own motion make a
care
order under that section. The
decision
of the majority of the Supreme
Court
was
that
where
there is
default
in the
fundamental
requirements of justice to the extent that a
detention
is
wanting
in
due
process of law, Article 40.4 procedure is permissible. An Article 40.4 order might be made
where
there has been a
fundamental
denial
of justice, but the
court
also stated that the procedure should rarely be utilised in
disputes
as to the
care
and
custody
of
children.
30. The
facts
of S.McG. are instructive. There, the order under scrutiny
was
an interim
care
order made under s. 17 of the Act of 1991. The
fundamental
denial
of justice
contended
in that
case
arose in
circumstances
where
the
District
Judge proceeded
with
the hearing of the interim
care
order application
despite
the absence of objection of the
Child
and
Family
Agency to an adjournment of the
case.
One parent had obtained legal aid on the morning of the hearing and the other parent,
who
was
functionally
illiterate, had no legal representation. The
Child
and
Family
Agency had agreed
with
the parties that a one
week
adjournment
would
be appropriate to
facilitate
the unrepresented parent to seek and obtain legal aid, and
for
the other parent's solicitor to adequately prepare
for
the
case.
The
District
Judge, however, refused to grant the adjournment and the application proceeded. An interim
care
order of 29
days'
duration
was
made and the
children
were
placed in the
care
of the
Child
and
Family
Agency.
31. MacMenamin J.,
with
whom
the majority of the Supreme
Court
concurred,
referred to two
decisions
of the High
Court
where
the
court
noted the undesirability of the utilisation of Article 40 procedure in
child
care
matters -
W.
v. Health Service Executive [2014] IEHC 8 and
Courier
v. Health Service Executive (Unreported, High
Court,
Birmingham J., 8th November, 2013). However, he
felt
that the
facts
of those
cases
were
very
different
from
the
facts
of the
case
which
the Supreme
Court
had to
deal
with.
He observed at para. 36:-
"
While
I
would
share the reservations expressed in these judgments as to the use of the Article 40 procedure in
child
care
cases,
these reservations
do
not arise
when
there has been such a
denial
of
fair
procedures as to render the proceedings effectively a nullity."
32. The judgments of the
court
in S.McG . illustrate the
considerable
debate
surrounding the extent to
which
Article 40.4 procedures might be utilised in
child
care
proceedings
where
it is not
contended
that the order is bad on its
face
but
where
it is alleged that there has been a
fundamental
unfairness. It seems to me that
whether
that point has been reached is essentially a matter of
degree
and that each
case
must be
determined
on its own
facts.
33. The
facts
of S.McG. paint an extreme picture. The
children's
parents
were
effectively
deprived
of legal representation
which
had a
fundamental
impact on the quality and
fairness
of the trial such as rendered it a nullity. MacMenamin J., at para. 33 of his judgment,
concluded
that
what
occurred in the
District
Court
was
a
fundamental
denial
of justice and of the
constitutionally
implied right to
fair
procedures.
Fair
procedures required that both parties be legally represented and that time
would
be given to take instructions and to
comply
with
other necessary procedural steps. He also observed that"[t] he effective representation of parents is not only a vindication of their own rights, but of the
children's
rights ".
34. The second matter of note relates to the nature of the order
which
was
therein being
considered
which
was
an interim
care
order, unlike in this
case
which
is
concerned
with
an application
for
an emergency
care
order under s. 13. To be noted in this regard are the observations of
Dunne
J. at para. 57 of her judgment:-
35.
Dunne
J. later observed that such an order might be obtained on an ex parte basis and that, even if not made on an ex parte basis, the exigencies of the situation and the risk might be such that an order has to be made even though the parents may not have had the opportunity to be present, to be heard or to be represented.
Dunne
J. observed that in some instances the requirements to take steps to protect
children
might take precedence over the rights to
fully
participate in such hearings. It is
for
that reason that a s. 13 emergency
care
order subsists
for
a limited period of no more than eight
days.
She
described
such a situation as being
far
removed
from
the
circumstances
that prevailed in the
case
under review and at para. 58 stated:- 36. It appears to me that in S.McG . the Supreme
Court
provided two
central
directions
for
the guidance of this
Court
when
considering
an application
for
an inquiry under Article 40 in the
context
of
child
care
proceedings.
First,
resort to Article 40 procedure should be rare in such
disputes.
Second,
where
there is a
fundamental
denial
of justice then the
court
should intervene.
37. It must be remembered that in such
cases
there is the potential
for
the making of errors by the
court
which
cannot
be said to amount to a
fundamental
denial
of justice, although the procedures and
findings
of the
court
might be vulnerable to legal
challenge.
Thus,
for
example, an error of law made
within
jurisdiction may not be amenable to
challenge
by
way
of judicial review. A
fortiori
, it may not be open to an application under Article 40. Such errors may be
corrected
by an appeal. A judge might misapply the law or reject applications or objections or, in the view of others, simply get it
wrong,
but it
does
not necessarily
follow
that there has been a
fundamental
denial
of justice. There is also the potential
for
the making of
fundamental
errors of law
which
may result in legal irrationality and thus give rise to grounds
for
judicial review. There is the potential
for
the making of procedural errors
which,
on the
face
of it, might render the hearing
constitutionally
or legally infirm and
while
potentially open to
challenge
in judicial review proceedings, nevertheless may not necessarily be open to an application under Article 40.4.
38. The observations of O'
Donnell
J. in his judgment in S.McG . are apposite in this regard. At para. 13 of his judgment he observed as
follows:-
"As
was
set out in the grounding affidavit, in ongoing interim
care
proceedings it
would
not be open to the parties to seek to re-litigate matters that had already been
dealt
with
in previous hearings, and in those
circumstances
the possibility of a
fully
contested
application
for
an extension of the interim
care
orders
would
not
cure
the jurisdictional procedural
defects
in the hearing on the
first
interim
care
order. The solicitor also observed that his experience of interim
care
proceedings
was
such that he had ‘every reason to anticipate that this had started a series of events
which
will
lead to the
children
remaining in the
custody
of the
Child
and
Family
Agency
for
months, if not years, before there is a
final
determination
of the issue of
whether
the
children
should remain in the
custody
of the
Child
and
Family
Agency on a long term basis'. I accept, therefore, that this meant that the order of 29 October 2015 had to be addressed, set aside, and the proceedings placed on a sound
footing.
However judicial review,
whether
by
way
of
certiorari
or a
declaration,
is the obviously appropriate method of
doing
so. Article 40.4 is ill-adapted
for
that purpose, since it
does
not remove the order or proceedings
from
the landscape, and
furthermore
comes
with
the necessary
consequence
of an order
for
release,
which
is not necessarily
wanted
or, if sought,
desirable.
However, the solicitor
contended
that if there
was
to be proceeding by
way
of judicial review
which
is not
determined
prior to 26 November 2015, then he
would
anticipate that he
would
‘meet in argument that my application
was
moot'. It
does
not appear to me that these two propositions
can
stand together. If indeed the order of 29 October 2015
could
continue
to have an impact both practical and legal on the
care
hearings, then it
could
not be said that any proceedings to quash that hearing
would
be moot. However, that is perhaps more easily said in hindsight."
39. Perhaps, of note, is the recent
decision
of Humphreys J.
delivered
on 11th September, 2018 in L.S.M. (A Minor) v.
Child
and
Family
Agency [2018] IEHC 500. There, an allegation had been made that there
was
a
fundamental
denial
of justice
within
the meaning of the
doctrine
established in S.McG . because of the
failure
to
furnish
all reports two
clear
days
in advance of a
care
order application hearing. It
was
alleged that this
was
in breach of the
District
Court
Rules and
was
in breach of the applicant's right to
fair
procedures. In rejecting the application under Article 40.4, Humphreys J. observed, inter alia, at para. 6 as
follows:-
40. It appears to me that the issue
which
requires to be addressed is
whether
the line between an alleged illegality and breach of
constitutional
right has been
crossed
to such a
degree
that a
fundamental
denial
of justice has occurred.
41.
Further,
I
do
not think that it is inappropriate to
consider
the practical effect of the making of an Article 40.4 order. In this
case,
it is
clear
that there
will
be no " production " of the
child
in advance of the interim
care
proceedings. Such an order has not been sought. Both the appeal
from
the emergency
care
order and the interim
care
order proceedings are listed in
different
courts
for
hearing later today. If the appeal is successful then the entirety of the order made by the
District
Judge
will
be reversed and set at nought. There is no reason to believe that any alleged
defect
in procedures or alleged breaches of rights, be they
constitutional
or at law,
cannot
be set right in the
context
of a
full
appeal hearing. If the appeal is successful, then the
clock
will
be set back and the slate
wiped
cleaned.
Therefore, in so
far
as there may be a breach of the rights of the mother and indeed the
child
as addressed in K. and T. v.
Finland
or under the
Constitution,
it may be said that these
can
be immediately addressed in the
context
of the
full
de
novo appeal hearing.
42. In so
far
as the interim
care
order is
concerned,
while
certain
observations in the Supreme
Court
in S . McG ., to
which
I have referred above, acknowledge the
continuous
nature of interim
care
order proceedings, and the potential
continuing
effect of interim
care
orders, it must be noted that such proceedings have a
different
statutory basis. The
court
on a s. 17 application must address the
criteria
outlined in s. 18 and
determine
whether
it has reasonable
cause
to believe that the
circumstances
addressed in that section exist or have existed, and that it is necessary
for
the protection of the
child's
health and
welfare
that he be placed or maintained in
care
pending the
determination
of the application
for
the
care
order.
43. Taking into account all of the
circumstances,
including the nature of the s. 13 order, its limited
duration,
and in particular the nature of the illegality alleged (that the
District
Judge applied the
wrong
legal test and that evidence
was
called
in respect of
which
inadequate notice
was
given), and also taking into account the
fact
that the applicants
were
fully
represented throughout the hearing by able solicitor and
counsel
who
were
permitted to make applications, objections and observations on the legalities of the procedures employed, I
find
it
difficult
to
come
to the
conclusion
the line has been
crossed
to the extent that a
fundamental
denial
of justice has been
demonstrated
which
must be remedied by an order under Article 40.4. In
coming
to this
conclusion,
and bearing in mind that the Supreme
Court
has
cautioned
against the
widespread
use of Article 40.4 procedures in
child
care
proceedings, it should not be taken
from
this
decision
or observations made herein that Article 40.4 procedure is impermissible as a matter of principle
where
an order has been made under s. 13 of the Act of 1991. Each
case
will
be heavily
fact
dependent.
For
the reasons outlined above, I
do
not believe that the line has been
crossed
in this
case
such as to render the alleged illegality and unconstitutionality a
fundamental
denial
of justice of a nature that requires the making of an order under Article 40.4 of the
Constitution.
44. I must therefore refuse the application.