The High Court found that an interim care order for two children was not lawfully made because their parents had not been given a fair opportunity to engage with the evidence. It directed the children’s release from the care of the Child and Family Agency, while reserving how that release would be carried out for a further hearing.
The judgment, delivered by Ms Justice Baker on 17 November 2015, followed an inquiry under Article 40.4.2 of the Constitution into the children’s detention. A District Court had placed the boy, aged 14, and girl, aged five, in the Agency’s care for 29 days on 29 October. They were living with their mother before the order and had since been placed with foster parents, with contact continuing with both parents.
The mother’s solicitor received detailed social work reports at about 10am on the hearing day and medical reports roughly 45 minutes later. The mother had obtained legal aid that morning, so her solicitor had been unable to meet her beforehand. After the case was called, he had about 15 minutes to discuss the reports with her. The father, who was not represented at the District Court hearing, told the judge he had applied for legal aid and could not meaningfully manage the process because of literacy difficulties and physical ailments.
Both parents and the Agency agreed to a one-week adjournment. The District Judge refused it. The hearing proceeded for four hours, after which the children were taken into care. Justice Baker found that the parents’ procedural rights had not been fully respected: the mother needed time to consider the reports and instruct her solicitor, while the father needed legal assistance. She said the requirements of fair procedure were particularly demanding given that the case could remove the children from their mother’s daily care.
The Agency argued that Article 40 was unsuitable for complex childcare disputes and that the parents could not rely on breaches of their own procedural rights to challenge their children’s detention. Justice Baker rejected both objections. She said judicial review could also have been appropriate, but its availability did not prevent an Article 40 inquiry. She also rejected the Agency’s claim that the parents’ interests necessarily conflicted with the children’s welfare.
The judge rejected a separate argument that the District Judge had effectively taken over the Agency’s role by directing the hearing to proceed. She concluded that the interim care order was invalid because the parents had not been afforded an opportunity to engage fully with the evidence. She directed the children’s release and said she would hear counsel on the means of achieving it. The judgment did not specify the arrangements or timing for that release.