The High Court has refused a mother’s application to have her newborn son’s detention by the Child and Family Agency declared unlawful, finding that the alleged procedural and legal errors did not amount to a fundamental denial of justice.
Mr Justice MacGrath delivered the decision on 8 November 2018, after an inquiry under Article 40.4 of the Constitution. The child, identified in the judgment as Q.F., was in the Agency’s care under an eight-day emergency care order made by the District Court on 1 November.
The Agency sought the order on the day the mother and child were discharged from hospital. Its application relied on concerns including the mother’s lack of a suitable support network and the history of her two older children, who were in care under separate court orders. Those were the Agency’s stated concerns; they were not findings made by the High Court in this Article 40 inquiry.
The mother challenged the District Court process, arguing that it applied the wrong test for an emergency order, gave inadequate notice of a second social worker’s evidence, and failed to establish an immediate and serious risk to the baby. Her solicitor’s affidavit said the mother had cooperated with social workers, attended medical appointments and cared appropriately for the child since his birth. The judgment records that the evidence raised no current concerns about drugs, alcohol misuse or domestic violence. The mother also told the District Court she would attend a mother-and-baby home if that would avoid separation.
The High Court considered the Supreme Court’s guidance that Article 40.4 proceedings should be used rarely in child-care disputes, but may be appropriate where there has been a fundamental denial of justice. It distinguished this case from an earlier case involving parents who had been deprived of a fair opportunity to obtain legal representation. Here, the applicants were represented throughout and could make objections and submissions, the judge said.
The court also noted that an appeal against the emergency care order and an application for an interim care order were listed for hearing later that day in separate courts. It found that any alleged defects could be addressed in the appeal, which would be heard afresh, and said there would be no production of the child before the interim care proceedings. The judge did not decide the appeal or the interim care application, or determine whether the District Court had correctly assessed the emergency-care threshold.
Concluding that the alleged errors had not crossed the line into a fundamental denial of justice, the High Court refused the Article 40.4 application. It said the decision did not make Article 40.4 unavailable in principle where a section 13 emergency care order is involved; each case depends on its facts.