The Court of Appeal has dismissed an appeal by an infant, suing through her mother and next friend, against the refusal of an Article 40 application seeking her release from the custody of the Child and Family Agency (CFA). The court held that the District Court judge acted appropriately in making a short interim care order after an emergency care order was due to expire and the hearing could not be completed that day.
The appeal concerned an interim care order made on 5 September 2018, after the child had been in a parent and child unit with her mother. The CFA had raised concerns about the mother’s welfare and capacity to care for the infant. Those concerns and the circumstances of the placement were described in the judgment as the agency’s position and evidence; the Court of Appeal was deciding whether the child’s detention was unlawful for the purposes of Article 40.4.
The mother challenged the late service of two reports relied on by the CFA. One was served the day before the District Court hearing and another on the morning of the hearing, despite rules requiring service at least two days beforehand. The CFA accepted that service was irregular. The Court of Appeal said the mother’s counsel had sought dismissal because of the procedural breach, but had not asked for an adjournment to allow more time to prepare. It concluded that the late service, by itself, did not justify an Article 40 order.
The hearing also ended before all evidence had been heard. The District Court judge had heard evidence from a unit manager, including cross-examination, and had begun hearing from a psychologist. With the emergency order about to expire, the judge adjourned the case to the earliest possible date and made an interim care order for a short period. The Court of Appeal described the situation as unsatisfactory, noting that a similar time problem arose at a later hearing, but said the judge faced difficult practical constraints and was trying to avoid leaving the child without a legal care arrangement.
The appeal court considered the judge’s response responsible in the circumstances. It differed from the High Court’s reasoning about an earlier case, State (Lynch) v Cooney, but agreed with the result. The Court of Appeal dismissed the appeal and declined to make an order under Article 40. The judgment does not determine the final care proceedings.