The Court of Appeal said an Article 40 challenge concerning a young child’s detention had become moot after a Circuit Court direction resulted in the child being placed with her elder sister. It said the proceedings were no longer an appropriate remedy at that stage, while indicating they could be converted to judicial review if the applicant wished to challenge the interim care order.
The ex tempore judgment, delivered on 4 March 2024 by President Birmingham, concerned an appeal from a High Court order made on 2 February following an inquiry under Article 40.4 of the Constitution. The applicant, identified as N.P., is the child’s elder sister. The child is identified as CMcD and was approximately two years and nine months old when the District Court made an interim care order on 31 January, placing her in the care of the Child and Family Agency (CFA).
The judgment recounts that the applicant had returned from England in about June 2023 and became aware of concerns about her mother’s drug taking and the CFA’s concerns for the welfare of the child and her 15-year-old brother. From September 2023, the applicant cared for the child under a private family arrangement at their grandmother’s house. The child attended a creche during the day.
The CFA sought an interim care order on 31 January 2024. The child’s mother opposed it, arguing that it was unnecessary because the child was being cared for by her sister. The guardian ad litem urged the CFA to place the child with the applicant. The District Court nevertheless made the order, and the child went to foster parents the following day.
The High Court directed an Article 40 inquiry on 2 February and later dismissed the application for the child’s release. On 7 February, the applicant applied under section 47 of the Child Care Act 1991 for a direction placing the child in her care; the District Court refused. The guardian ad litem appealed. On 26 February, the Circuit Court allowed that appeal and directed the CFA to place the child with the applicant by 6pm the next day. The placement took place.
The Court of Appeal noted the CFA’s submission that the case was moot and said the issue would have arisen even without that submission. It expressed doubts about whether Article 40 had been the appropriate route initially. Citing observations in an earlier Supreme Court case, it explained that an Article 40 inquiry is limited to granting or refusing release and cannot quash an order or direct performance of a legal duty.
The court concluded that later events had overtaken the case and that Article 40 was not an appropriate remedy at that point. It did not rule on the effectiveness of the interim care order. The judgment said the proceedings could, if the applicant wished, be converted to judicial review and remitted to the High Court for directions.