New Appeal: Court grants “interests of justice” appeal from a High Court decision

In this determination (FG v The Child and Family Agency), the Supreme Court granted FG leave to appeal directly from the High Court, as the Court determined that the constitutional interests at stake and the interests of justice raised in the case met the constitutional threshold for an appeal. (This may be the first such appeal since the 33rd Amendment).

 

Background

The preliminary proceedings which led to this appeal are complex. In October 2014, the District Court placed FG’s three children in the CFA’s care and ordered that the CFA will determine FG’s access to her children. In February 2015, the Circuit Court rejected an appeal to those orders. The CFA decided to allow FG supervised access for a brief period on Christmas Day, Easter and on each child’s birthday.

In July 2015, FG applied for judicial review of the Circuit Court decision. By this stage she was representing herself. The High Court, Noonan J, dismissed that application, as it was not within the time period allowed for a judicial review application. FG did not apply to the court for an extension of time.

In January 2016, FG applied again to the High Court for judicial review. She informed the court that her solicitor and barrister had advised her, at the time of the Circuit Court decision, that she had six months to seek judicial review of the decision. Humphreys J adjourned the proceedings to allow FG to notify the CFA of the application and to apply again to the CFA for increased access.

In February 2016, the CFA notified FG by letter of its decision not to increase her access to her children.

At the adjourned date, Humphreys J granted FG an extension of time to appeal the care orders and leave to appeal the 2016 letter refusing increased access. Humphreys held that, as FG did not apply to Noonan J to extend the time for an application, it was open to him to grant an extension. And as FG was introducing new evidence (legal advice on time) and seeking other reliefs (review of letter) it was open to him to grant leave for a full hearing of the issues.

Humphreys held that FG had raised an arguable case that the Circuit Court order leaving access entirely at the CFA’s discretion was unlawful and that the 2016 letter was amenable to judicial review.

Humphreys also held that his decision on the extension of time was a final order which could not be challenged. The CFA appealed that decision to the Court of Appeal. The CoA allowed that appeal and amended Humphreys’ order so that all issues could be argued at trial.

The Court’s determination outlines the issues raised at the full hearing:

  1. It is clear from the judgment that counsel for the CFA made submissions on a broad range of issues, including an assertion that where a care order is in place, the court has no further function in regulating access. At the same time it was argued that the letter of the 27th February was not amenable to judicial review, and that the applicant had failed to exhaust her remedies in that she had not availed of the right to apply in the District Court for a variation of the care orders or variation of access. It was also argued that, having regard to the ruling of Noonan J. in refusing leave, the matter was res judicata and/or an abuse of process.

  1. In dismissing the application, Heneghan J. ruled that the applicant had not utilised the provisions of the Childcare Act which permit the District Court to review access. She agreed with the submission that the refusal to extend the access arrangement conveyed by the letter of the 27th February, 2016, did not constitute a decision amenable to judicial review. She also accepted the res judicata argument and held that the decision of Noonan J. was final.

 

The Supreme Court determined that the case met the constitutional threshold for an appeal under the interests of justice provision introduced under the 33rd Amendment to the Constitution. The issues certified are:

  1. whether Humphreys J was entitled to grant an extension of time and leave to seek judicial review, or whether the refusal by Noonan J to grant leave to seek judicial review rendered the matters raised by the applicant res judicata;
  2.  whether the letter of the 27th February, 2016, contained a decision amenable to judicial review; and,
  3. whether this Court should remit the matter for full hearing on the substantive issues identified by Humphreys J [FG had raised an arguable case that the Circuit Court order leaving access entirely at the CFA’s discretion was unlawful and that the 2016 letter was amenable to judicial review].

 

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