The High Court has ordered that a minor be removed as a co-applicant in his father’s judicial review against the Child and Family Agency (CFA), and joined as a notice party represented by a guardian ad litem (GAL). The ruling addresses representation in the proceedings, not the merits of the father’s challenge.
The father’s judicial review concerns CFA decisions about his access to, and information about, his son over several years. The child has been in care since 2007 under a District Court care order lasting until he turns 18. The father alleges that the CFA acted to turn the child against him. Those allegations were not determined in this ruling.
The child was joined as a co-applicant in November 2016, with his father acting as next friend. At a hearing in March 2019, the judge considered whether the child’s interests and views should be independently represented. The CFA then brought a motion to remove him as an applicant. The father opposed the motion and the appointment of a GAL, arguing that the child wanted to remain a party and be heard directly. The accounts of the child’s wishes and the suitability of the existing GAL were submissions by counsel, not findings resolving those disputes.
Justice Ní Raifeartaigh said the affidavits disclosed a factual dispute between the father and the CFA about how the child had reacted to visits with his father. The judge said the court might need to assess what happened when considering whether the CFA had exercised its discretion reasonably. She also said any relief in the judicial review could affect continuing or future care and access arrangements.
In those circumstances, the judge considered it inappropriate for the child to be an applicant represented by the father, who was at the heart of the dispute. The ruling identified a potential conflict of interest; it did not find that the father and child were in conflict. The judge acknowledged that the CFA had waited about two and a half years to seek the change, and that the late alteration affected the father’s preparation, but concluded that the existing party arrangement should not prevent independent representation.
The court set aside the November 2016 order only insofar as it had joined the child as an applicant. It ordered that he instead be joined as a notice party and appointed the GAL already involved in the District Court care proceedings to represent him, relying on the High Court’s inherent jurisdiction. The judge described the GAL as independent of the parties and said her views would not necessarily determine the outcome. The court declined to appoint a psychologist or psychiatrist to interview the child. The ruling did not resolve the judicial review’s substantive claims.