The High Court has quashed the full Circuit Court order made in a child welfare case and sent the Child and Family Agency’s appeal back for a rehearing. The court said the Circuit Court lacked jurisdiction to restrict a father’s unsupervised access to his infant child, and that removing the restriction alone would change the effect of the order.
Mr Justice Barr delivered the judgment on 17 December 2021 after hearing two related judicial review proceedings together. The mother had challenged the access restriction in the order made on 21 July 2021. The Child and Family Agency (CFA) brought a separate case seeking to quash the entire order. The father supported the mother’s application; the guardian ad litem supported the CFA’s position.
The Circuit Court order had made a six-month supervision order in respect of the mother, refused an interim care order, and said the father was not to have unsupervised access to the child. It also recorded the mother’s agreement to a community-based parental capacity assessment. The access restriction was linked in the judgment to the Circuit Court’s decision not to make a care order.
The parties agreed that the Circuit Court had no jurisdiction to impose the access restriction in these circumstances. The High Court found that the statutory powers to make access orders applied where a care order was in place, and that the power to give directions under a supervision order did not extend to custody or access.
The dispute was whether that restriction could be severed while the other terms remained. The mother argued it could. The CFA and guardian ad litem argued the whole order should be set aside and the appeal reheard. The High Court accepted that it could consider the entire order in the judicial review, but held the order was a single unit and that removing one term would leave a materially different result from the one intended by the Circuit Court. It said judicial review did not make it an appeal court able to remake another court’s order.
The court said the child’s welfare required the whole matter to be reconsidered. It quashed the entire Circuit Court order and remitted the CFA’s appeal against the District Court order of 26 April 2021 to the Circuit Court for rehearing. The judgment did not determine the underlying care question or make a new care or access order. The court said it would hear the parties on any further orders.
The High Court also extended time for the CFA’s judicial review proceedings, finding sufficient reason for the delay and accepting that the agency had acted promptly after the mother brought her challenge. As that ruling rendered the CFA’s requested relief effectively moot, the court did not give a detailed judgment on that application, but granted the reliefs sought and said it would hear the parties on further orders.