A Supreme Court judge has concluded that the parents of two children were denied constitutional fair procedures when a District Court refused to adjourn an interim care hearing, despite the parents’ lack of effective legal representation and preparation time.
In a judgment dated 23 February 2017, Mr Justice John MacMenamin said the circumstances amounted to a fundamental denial of justice. He would dismiss the Child and Family Agency’s appeal against a High Court decision that had granted an inquiry under Article 40.4.2 of the Constitution into the children’s detention.
The Supreme Court appeal concerned the legality of the initial District Court hearing, not a fresh decision on where the children should live. The boy, then aged 14, and girl, then aged five, had been placed in CFA care for 29 days under interim orders made pursuant to section 17 of the Child Care Act 1991. Those orders had expired by the time of the appeal. After the High Court proceedings, the children returned to their mother on a phased basis; a renewed District Court application later placed them in CFA care again.
The mother obtained emergency legal aid but did not meet her solicitor until the hearing day. The solicitor received much of the paperwork shortly before the listed start time and had not finished reading the detailed social work report or taken full instructions when the hearing began. The father had no legal aid, was functionally illiterate and had significant physical ailments. He asked for an adjournment and told the court he had applied for legal aid. The mother’s lawyer and the CFA’s lawyer had agreed that a one-week adjournment was appropriate, but the District Court proceeded. After a four-hour hearing, it made the interim care orders.
MacMenamin J. said effective legal representation for both parents was required to allow meaningful participation. He considered the resulting procedural failure so fundamental that the children were, in the relevant legal sense, held without a valid legal mandate. He said Article 40 could be used in exceptional childcare cases involving such a denial of constitutional justice, while cautioning against its use in routine inter-parental care disputes.
He also addressed section 23 of the 1991 Act, which allows a court, after finding a care order invalid, to make further arrangements where return would not serve the child’s best interests. He said the court must first find the order invalid and direct release under Article 40; only then may it use section 23 to protect the child’s welfare. The judge rejected the argument that the appeal was moot, reasoning that a fundamental flaw at the start of care proceedings could have continuing effects. The judgment sets out MacMenamin J.’s reasons and proposed disposition; the supplied text does not establish the Supreme Court’s overall disposition.