CFA v McG: Habeas corpus can be an appropriate remedy in childcare proceedings where there has been a fundamental breach of justice

shutterstock-2918689-630x420Here, the Supreme Court upheld the High Court’s judgment granting McG a writ of habeas corpus against the District Court’s order placing her children in the CFA’s care. The Court held that an application under Article 40.4.2° of the Constitution (habeas corpus) was appropriate as the District Court had breached McG’s constitutional right to fair procedure in the custody hearing.


This case began in the District Court, where the Child and Family Agency (CFA) was seeking an interim care order for two children. The children’s mother (McG) and father (JC) both suffered from drug addiction. Their relationship was chaotic and often violent. And McG and the children (14 and 5) had no settled home. But the children were in no immediate danger. Legal aid was provided to McG 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. JC was awaiting legal aid. The parties agreed to seek a one week adjournment to allow the legal aid solicitors to prepare. However, the judge had read the CFA’s submission and refused the application for an adjournment. She made an order transferring custody of the children to the CFA.

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 CFA applied to the Supreme Court for a leapfrog appeal, bypassing the Court of Appeal. Granting leave to appeal, the Court determined that the CFA had met the applicable constitutional threshold. The Court certified one question:

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”?

Supreme Court

MacMenamin J wrote the judgment for the majority of the seven judge Court; only Charleton J dissentedand only in part.

The CFA argued, among other things, that habeas corpus proceedings are ill-suited to childcare issues and transfer of custody is not detention. Such proceedings are limited to orders for detention issued without jurisdiction, and McG should have appealed the decision on merits.

MacMenamin dismissed those arguments. Firstly, there is long held Supreme Court authority permitting the use of Article 40 proceedings in child custody proceedings, most recently in N v HSE [2006] IESC 60. Secondly, the order was comparable to detention, as the children were placed under the complete control and supervision of the CFA and were not free to leave. And thirdly, this is a case where the order was issued in breach of a fundamental breach of fair procedure and was therefore without jurisdiction.

MacMenamin J stated in conclusion:

  1. In the instant case, the practical vindication of the rights of parents warranted an appropriate, proper and effective level of legal representation in the District Court proceedings permitting real engagement therein. The situation which arose in this case, although undoubtedly motivated by proper intentions, unfortunately amounted to a denial of the constitutional rights of the parents. As a matter of fair procedures, both respondents had the right to meaningfully engage in the proceedings. This necessitated effective legal representation for both parents. In the absence of such fair procedures and natural justice, the hearing was not in accordance with law.
  1. In holding that Article 40 is appropriate, in these exceptional circumstances, where there has been a denial of constitutional justice, I would not wish to be taken as, in any way, derogating from the clear observations of this Court made in Ryan or Roche (Dumbrell). I would hold that a constitutional application of s.23 requires that the orders of the Court be effected in a constitutionally compliant sequence, vindicating, where so required, in the first instance, the right to liberty by an order for release, and second, if necessary, by an ancillary order under s.23 of the Act, protecting the welfare of children. I would entirely deprecate the usage of Article 40 proceedings in routine inter-parental care disputes. Moreover, the duty of the court hearing such an application is always to have the welfare of children as the paramount consideration.

O’Donnell J issued a concurring judgment (here).

Charleton J dissented (here). He believed that the parents had not established that the District Court issued the order without jurisdiction, stating:

  1. Finally, and concurring with the majority, habeas corpus applications in child care and custody cases are not to be encouraged. In the event that matters are not ready to proceed and in the event that the applicant consents to an adjournment but the District Court having read all the papers considers that the children are in danger, then evidence can be called which may justify the making of an emergency care order on an application by the Child and Family Agency. It was the failure to prove that these children were not in such danger when the District Court made its determination that required this dissent, which is essentially one as to the failure of the mother and father to prove that the judge dealing with the case of these children at first instance was so much in error as to be a failure of jurisdiction.
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