The Irish High Court has dismissed an appeal seeking an order under Article 40.4 of the Constitution for the release of an infant from the care of the Child and Family Agency, Tusla. An interim care order had been granted in the District Court on 5 September, where the trial judge did not hear all of the evidence due time constraints.
The applicant, LSM, a three month old infant was born in June 2018. The applicant’s mother, KM, had been in the care of Tusla from 13-18 years of age, some of which was spent in secure care. Tusla had multiple concerns in relation to KM including substance misuse, emotional and behavioural problems, mental health issues, risk-taking, physical aggression, self-harm and offending behaviour. On this basis, Tusla was granted an emergency care order, and subsequently sought an interim care order.
Under District Court rules Tusla was obliged to furnish its reports two days before the application was made, however they were not received until the day before. On the day of the application, the judge adjourned the remainder of the hearing due to lack of time and granted an interim care order until that date.
In the High Court, the LSM and KM sought an order under Article 40.4 on the basis that there had been a fundamental denial of justice. It was submitted that the Tusla’s failure to provide the reports within sufficient time was a breach of the applicants’ right to fair procedure established in S. MGV. Child and Family Agency. The Court noted that the applicants did not seek an adjournment, but rather made an application to dismiss the proceedings. Further, this point had not been raised in the District Court. In rejecting this argument, the Court contended that the objection was a legalistic one and did not meet the high benchmark of a fundamental denial of justice set out in S.McG.
The applicants also argued that the court had been deprived of its jurisdiction and there had been a breach of fair procedures due to the order being granted without a complete hearing of the evidence. The Court noted that the order was not made on the basis of no evidence, having regard to written evidence and a full cross-examination of one of the witnesses. It stated that where circumstances are such that the full operation of conventional fair procedures would be impractical due to lack of time, a curtailed or modified form of fair procedures being applied was not a breach of fair procedures. The ultimate test of constitutions and laws is that things must be made to work.
The Court also acknowledged the doctrine of proportionality, stating that the District Court judge made a ruling no greater than was required by necessity in making the 12 day interim care order. It went on to say that the court was entitled to make such an order if time runs out and the right to fair procedures was not breached by a truncated process.
Click here to for the judgement in LSM v Child and Family Agency