Evidence required to renew care order
HIGH COURT JUDGMENT:KA -v- Health Service Executive Ors
Neutral citation (2012) IEHC 288.
Judgment was delivered onJuly 3rd, 2012, by Ms Justice Iseult O’Malley.
Orders made in the District Court to continue interim childcare orders in the absence of consent from the mother and of oral evidence were not validly made and the minors in question were not lawfully in the custody of the Health Service Executive (HSE).
Submissions were invited as to the next steps.
The case came to the High Court as a complaint under Article 40 of the Constitution from the mother of two children, aged 10 and 12, who had been in the care of the HSE under interim care orders since July 2011. On some occasions there was consent to the extensions of the interim care orders and on others there was not, and extensive hearings took place.
The most recent extension was on June 21st last and the applicant had objected. On that date the District Court judge presiding over the family law list said a judge would be available for two weeks after July 16th to hear an application sought by the HSE for a full care order. Counsel for the mother indicated she would not oppose the extension of the interim order up to that date.
However, when the case was called again, counsel for the HSE said it did not want a hearing date as it wanted time for an assessment of the circumstances of the father of the younger child. The mother objected to an extension beyond July 16th. The judge granted the extension and adjourned the matter to July 19th. Counsel for the HSE verbally gave the judge certain information, saying the fundamental concerns still remained and “there is no point reopening it at this time”.
Counsel for the mother said interim care orders could only be made if based on evidence. Interim care orders are time-limited and decisions must relate to the circumstances as they are on the day, he said.
Counsel for the HSE said the judge had an inquisitorial role in childcare proceedings and he or she could not “wipe their memory clean” and start each application afresh. He said this case was in reality about a case-management decision and not appropriate to an application under Article 40.
Ms Justice O’Malley said the case had to be considered in light of the constitutional presumption that the welfare of the child was to be found within the family, unless the court was satisfied on the evidence that there were compelling reasons why this could not be achieved. It was accepted that child care cases were not entirely analogous to other litigation, and the judge’s role was more inquisitorial than usual. However, the normal rules that the courts must act on evidence still applied.
The judge is entitled to rely on his own memory of evidence given at previous hearings, but the test to be applied at the time of the extension application must relate to circumstances as they are at that time, and the judge therefore must be given up-to-date information, normally by way of oral evidence, so that it can be tested. Here the nearest thing to up-to- date evidence was an assertion by counsel for the HSE that the fundamental concerns remained. It was not the case “that a statement by counsel as to the existence of a disputed fact can be taken in lieu of evidence”, Ms Justice O’Malley said.
“The applicant was entitled to consent to the extension of the interim care order when she thought she would have a full hearing in the near future, and equally entitled to withdraw that consent when it became apparent that such hearing would probably not happen for several months.”
Referring to the suggestion from counsel for the HSE that if the applicant was successful she would make the situation of the children worse, the judge said: “The only effect of this judgment will be, hopefully, to ensure that orders are not made without the judge being provided with evidence upon which they can properly be made.”
She was not saying full evidence was required on all aspects of the case at every extension application, and practitioners had an obligation not to waste court time. In this case, she said, the orders were not validly made and the minors were not lawfully in the custody of the HSE. However, that was not the end of the case and she invited submissions as to the next steps.
The full judgment is on courts.ie
Colman Fitzgerald SC and Stafford Quinn BL, instructed by Walsh solicitors, for the applicant; Felix McEnroy SC and Brian Barrington BL, instructed by McGovern solicitors, for the HSE.