New appeal: Is the habeas corpus remedy appropriate for child care issues?

shutterstock-2918689-630x420In this determination (Child and Family Agency v S McG) the Supreme Court granted the Child and Family Agency an order enabling an appeal directly from an order of the High Court.


The question is:

Where children are made subject to an interim care order under section 17 of the Child Care Act 1991 requiring “that the child named in the order be placed or maintained in the care of” the applicant Child and Family Agency, are such children ever subject to a habeas corpus remedy under Article 40.4.2º of the Constitution as being “unlawfully detained”?


This case began in the District Court, where the Child and Family Agency was seeking an interim care order for two children. The children’s mother (S McG) was provided with legal aid on the morning of the hearing. The solicitor provided only had a few minutes to meet the mother and did not have time to review the social worker reports on which the application was based. The judge refused an application for a one week adjournment and made an order transferring custody of the children to the Agency for 29 days.

Ms McG brought a High Court habeas corpus application under Article 40.4.2º of the Constitution seeking an order that her children were unlawfully detained.

In the High Court, Baker J (here) ordered the release of the children, stating:

50. I am satisfied that the order was not lawfully made and was made without affording an opportunity to the applicants to fully engage with the evidence. Because the question before the District Court related to the day-to-day relationship and care of the children by their mother, and the ongoing contact between the children and their mother, the frailty in the making of the order impacts on its validity in a way that failed to engage the welfare of the children and their place in a family unit.

The Agency made an application to appeal that decision directly to the Supreme Court, bypassing the Court of Appeal. Before granting such an order, Article 34.5.3 of the Constitution (33rd Amendment) requires that the Supreme Court, firstly, be satisfied that the case raises an issue of general public importance (or it’s in the interest of justice): and secondly, the Court must be satisfied that there are exceptional circumstances which warrant an appeal directly from the High Court.

On the facts of the case, the Supreme Court determined, firstly, that this case did raise an issue of general public importance: is it ever appropriate to use the habeas corpus remedy in family proceedings which “concern the paramount interests of children under Article 42A of the Constitution” and where State agencies act in good faith and genuine concern for the welfare of children?

Secondly, the Court found that there is a risk that the case could operate “as a precedent enabling the remedy of habeas corpus in contradistinction to the readily available remedy of an appeal in the ordinary way or an application for judicial review”.

In such circumstances, the Court made an order enabling the appeal.

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