The Supreme Court agreed that a District Court hearing on 29 October 2015 breached fair procedures, after parents were unrepresented or their lawyers had no effective opportunity to prepare. In a judgment delivered on 23 February 2017, O’Donnell J concurred with the order proposed by MacMenamin J, while expressing reservations about using an Article 40 inquiry to resolve disputes about children’s care.
The appeal concerned an interim care order made after the District Court hearing. The mother, identified in the judgment as Joan, challenged the children’s custody under Article 40.4 of the Constitution. The High Court ordered their release on 17 November 2015, finding the return to its inquiry insufficient to justify their detention. The order was later amended to provide for a staggered return to their parents under an arrangement reached by the parties.
That return did not take place. The Child and Family Agency issued fresh applications for interim care orders on 19 November. After further negotiations, the applications were adjourned, and the parties agreed to a period of voluntary care. On 17 December, following evidence and cross-examination, the President of the District Court granted interim care orders for both children for 28 days; O’Donnell J said those orders had been renewed. The children remained in the Agency’s care at the time of the Supreme Court appeal.
O’Donnell J said the breach at the October hearing was fundamental. He considered that judicial review would ordinarily be the appropriate way to set aside an order made after such a defective hearing, because an Article 40 inquiry gives the High Court power only to order release or refuse it; it cannot quash an order. He also noted that the relief sought was not, in substance, the children’s immediate return to their parents, but a fresh and fair hearing on interim care.
The judgment discusses whether section 23 of the Child Care Act 1991 could allow children to remain in care while a new application was heard. O’Donnell J expressed no concluded view on that question, which he said had not been fully argued. He agreed with the case’s practical outcome: the October order should be treated as having no effect, while the children remained with the Agency pending a fresh application. He cautioned that the approach should not be treated as a general route for using Article 40 to quash court orders or avoid its release remedy.