The Supreme Court dismissed four appeals brought by the Child and Family Agency (CFA) in proceedings concerning two children, identified in the judgment as M McD and J B. In a judgment delivered on 28 February 2024, Justice Brian Murray agreed with the conclusion and reasoning set out in Justice Hogan’s judgment, while explaining the limits of the decision.
The cases involved two distinct sets of applications. In the first, the children’s representatives sought orders requiring the CFA to carry out its duty under section 23F(8) of the Child Care Act 1991. The applications relied on the High Court’s supervisory jurisdiction. In the second, the CFA itself applied under section 23H of the Act for orders concerning the children. The applications were heard by different High Court judges.
The CFA argued that staffing and resource constraints affected its ability to comply. Justice Murray said those difficulties could not justify refusing the section 23H orders the CFA had applied for. He also rejected the logic that the High Court should have declined to require the CFA to make those applications because the resulting orders might be impossible to fulfil. In the circumstances of this statutory scheme, he said, resource problems could not be used to avoid the mandatory duty in section 23F(8).
Justice Murray stressed that the ruling was confined to the particular statutory framework and the circumstances of these cases. The Court’s power to grant mandatory orders is discretionary, and resource constraints may matter in other cases, depending on the duty, the applicant’s interests and the consequences of granting or refusing relief. He referred to a United Kingdom Supreme Court decision in which further evidence was required before deciding whether to compel a local authority to provide accommodation.
The Court did not decide whether Brady v Cavan County Council was correctly decided. Justice Murray said that question should await a case where it arises on a defined factual and legal record.