1 I hesitate to add a further judgment on this issue in respect of which I am in broad agreement with the approach of MacMenamin and Charleton JJ. An Article 40 inquiry should rarely be used in disputes as to the care and custody of children. In relation to the single issue upon which they differ, I agree with MacMenamin J. that the breach of fair procedures in the District Court hearing on the 29th of October 2015, even if the product of concern as to the safety of the children, and frustration with the difficulty in providing legal aid, was nevertheless a fundamental departure from the requirements of a fair hearing. I also agree that what is and was required from the court system in this case, whether by agreement at District Court level, or by an appropriate order at the level of the Superior Courts, was that the clock should be reset to zero and proceedings should recommence in circumstances where both parents here were fully and properly represented, and did not in any way suffer from the fact that there had been a determination made on the application on the 29th of October 2015.
2 It is also apparent that the outcome of this appeal has not been to produce a single bright-line rule sought by the appellant. Given the fact therefore that there is no clear-cut legal determination of this appeal, and that there is much good sense in the sensible and sensitive way in which this case was resolved firstly by the learned High Court judge, thereafter by the parties in entering into negotiation, and subsequently under the supervision of the President of the District Court, it might be thought that there is little to be gained from further observations on the legal aspects of this case. However, applications for inquiries pursuant to Article 40.4 of the Constitution are inevitably carried out under great pressures of time, speed, and in a case such as this, emotion. Here a practical solution was arrived at. It is necessary to consider however what the correct course of action would be in a case where agreement and common sense are in shorter supply than they were here. Furthermore, since s.23 of the Childcare Act 1991 has assumed a greater importance in this appeal that it did in the proceedings in the High Court, and in any event is a novel and unusual provision, it is necessary to consider the context in which it might apply.
3 One important feature of this case only emerged when it was contended on behalf of the respondents that the case was moot because the original order of the District Court made on the 29th of October had expired on the 26th of November 2015. The application herein was commenced on the 6th of November, heard over three days on the 10th, 11th and 12th of November, and the judgment of the High Court delivered on the 17th of November 2015. The order made that day and perfected the following day directed that the children “be released forthwith from such detention”. However, we have been informed that the parties immediately discussed the possibility of a staggered release from the custody of the Child and Family Agency (“CFA”) and on the 27th of November 2015, the High Court formally made an order amending the original order in respect of costs, and also in respect of release, as follows:
“And the Court being of opinion and so adjudging that the said return to the said Order of the 6th of November 2015 is insufficient to justify the detention of the said JMCG and JMCG as aforesaid doth Order that the said JMCG and JMCG be released from such detention but return of care to the parents to be staggered in accordance with the agreement reached by the parties up to 5.30pm on Tuesday the 24th of November 2015.”
4 As the reference to the 24th of November 2015 shows, the order of the 27th of November 2015 was an order formalising the arrangement which had already been put in place. In fact, new applications for interim care orders were issued by the CFA on the 19th of November 2015 made returnable for the District Court on the 23rd of November 2015. On the 24th of November, there were further negotiations and an agreement reached in respect of a period of voluntary care. The application for interim care orders was adjourned to the 10th of December 2015. On the 17th of December 2015 after extensive evidence and cross-examination the President of the District Court, granted interim care orders in respect of both children for a period of 28 days which have been renewed. . It should also be said that the respondents cooperated extensively with the proceedings, and the second named respondent has successfully completed a residential detoxification programme and is availing of after care support and seeking suitable accommodation to enable him to care for his two children. To that extent the story of this case shows that overall the system has functioned in respect of the children here. The application for an inquiry under Article 40, with which this Court is concerned, is only a part of those proceedings. However, it is I think particularly noteworthy that although the High Court made an order under Article 40.4, for release of the person whose detention or custody has not been justified, which is arguably the most important and powerful order the High Court can make, the children in question have never been “released”. They remained in the custody of the CFA and were still in that custody as of the hearing of this appeal. That was because, very responsibly, no party to the proceedings or the Court considered that the simple order under Article 40.4 was appropriate in the case. Indeed, on this appeal, much attention has been directed to the possible use of s.23 of the Childcare Act 1991 as providing a route by which the constitutional requirement of a fair hearing at which parties were adequately represented is maintained, without the consequence that the children would be immediately removed from the care of the CFA and returned to the custody of the parents. The issue here is one which may have ramifications for the remedy under Article 40.4 more generally, and deserves therefore some further attention.
5 I agree with the observations of the late Mr. Justice Hardiman in N v. HSE 4 IR 374 at p.534, that an Article 40 inquiry was “one of the great bulwarks of personal liberty and of a free society”. Part of its strength is its clarity and simplicity: only one issue is to be determined, the liberty of the individual, and normally at least, the options for the High Court hearing such an inquiry are similarly limited: the High Court can make an order for release or refuse to do so. In N v. HSE the Supreme Court considered that it was possible to make a staggered order for release because of the interests, and indeed constitutional rights, of the child concerned. However, even in such a case, the object of the order is still the release of the child, and the restoration of the custody in that case of the natural parents. Here the children remained in the custody of the CFA, and were never restored to the custody of their parents. Accordingly, it is appropriate to look closely at the method by which the remedy was applied in this case.
6 I agree with Dr Kevin Costello when he observes at page 116 of his admirable text, The Law of Habeas Corpus in Ireland (Dublin: Four Courts Press, 2006) that:
“Article 40.4.2 appears, on a number of grounds, unsuited for acting as a mechanism for the adjudication of child custody disputes. Article 40.4.2 is concerned with detention which is not in accordance with the law. Applications for the transfer of guardianship, on the other hand, do not usually challenge the legality of the current guardian’s custody, but the suitability of that custody.”
Nevertheless, as the author points out, there is sufficient authority to demonstrate that as a matter of history that Article 40.4 and its common law predecessor, the prerogative writ of habeas corpus, have operated in the field of child custody. But the law has always operated slightly differently in that field. In the first case, the issue here is not the liberty of the children so much as who should have custody of them. The applicant here was a mother asserting custody on her own behalf, and not the rights of the person detained as would normally be the case, and indeed required, on an application under Article 40. Perhaps for the reason that the rights of a third party and moreover the rights of a child are involved, and those interests may not be perfectly aligned with the interests of the person claiming custody, the law has operated rather differently than in classic habeas corpus procedure. For example, in the case of R v. Howes (1860) 3 E&E 332, Cockburn C.J., applied the principle that where a young person had left the custody of their parents or legal guardian, the court would not enforce the return of the young person if it was plain that they had reached the age of discretion, could make decisions for themselves, and had decided to leave the custody of their parent or guardian. As is observed in Costello op.cit., the traditional remedy of habeas corpus in this field was always exercised with what Gavan Duffy P. described In re Kindersley  I.R. 111 at pp.119-120, as “a delicate discretion in the best interests of young children”.
7 I would however be slow to accept the proposition canvassed in this case that there remains in existence the possibility of invoking the prerogative writ of habeas corpus on more flexible terms in matters concerning children and which co-exists in some way with a stricter remedy under Article 40.4.2. I would prefer to see Article 40.4 as the entrenchment in constitutional terms of the prior common law remedy. However, the history of that common law remedy in the field of children’s affairs is in my view relevant to the manner in which Article 40.4 should be applied, not least because of the recognition of the constitutional rights of children. In a sense this is what this Court recognised in N v. HSE. In cases concerning children, particularly since the coming into force of Article 42A, it should be possible to say that the inquiry under Article 40.4 is also exercised with particular delicacy, and the formidable remedy granted only where it is not merely appropriate but demanded.
8 The remedy of an inquiry under Article 40 is the great constitutional remedy of the right to liberty. It carries with it its history in the common law as the vindication of the rule of law against arbitrary exercises of power. It is and remains the classic remedy when a person’s liberty is detained without any legal justification, or where the justification offered, is plainly lacking. However the right it protects is a right not to be deprived of liberty save in accordance with law. More difficult issues arise when it is sought to justify detention by the production of a valid order which is regular on its face, but which it is asserted is liable to be quashed because of some defect in procedure. The High Court on an Article 40.4 inquiry does not have jurisdiction to make any order other than release or to refuse release. It cannot for example quash an order or direct the performance of a legal duty. Given the importance of the remedy, and its power, I do not doubt that it is possible in a fundamental case, for the High Court to as it were, “look through” an otherwise validly issued order, or at least an order which has not yet been quashed by a court with jurisdiction to do so, and direct the release of the applicant. The Constitution itself recognises perhaps the most dramatic example of this where it specifically provides for the possibility of Article 40 being invoked in circumstances where it is contended that a person is being detained in accordance with law, but “that such law is invalid having regard to the provisions of this Constitution”. However, the High Court is not itself given power under Article 40 to declare the law invalid even though it is for these purposes “satisfied” that it is invalid. Instead it is to refer the question of validity of law to the Supreme Court, and refrain from making an order under Article 40, until such time as the Supreme Court has determined the question so referred.
9 When habeas corpus was established as the essential bulwark of personal liberty, the grounds for asserting the invalidity of an order whether of detention or otherwise, were limited and rarely invoked. Similarly there was no provision for a right of appeal against conviction in criminal cases, something itself a relative novelty in 1937 when the Constitution was adopted. The writ of habeas corpus was an important method of ensuring legality of detention, in the absence any other mechanism being provided by law.
The manner in which the constitutional remedy has been applied has taken account of these changes in the legal landscape. Thus, in State (Royle) v. Kelly  I.R. 259 Henchy J. stated at p.269:
“ The mandatory provision in Article 40 section 4, subsection 2, of the Constitution that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of the rule of habeas corpus which is to be found in many Constitutions. The expression “in accordance with the law” in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of this test is to ensure that the detainee must be released if - but only if - the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention”
In Ryan v. Governor of Midland Prison IESC 54 Denham C.J. quoted this passage and continued at para. 18:
“Thus the general principle of law is that if an order of a court does not show an invalidity on its face, and in particular if it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial review. In such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw.”
10 The grounds for challenging the validity of orders made has expanded exponentially since the remarks in State (Royle) v. Kelly were made. But in most cases Article 40.4 cannot be invoked as an alternative speedier and sometimes more costly and disruptive route to a conclusion which may require the careful analysis by way of judicial review of the validity of an order. For my part I accept the observations of Henchy J. in State (Ahearne) v. Cotter  I.R. 188, that the High Court hearing an application under Article 40.4 does not have jurisdiction to quash orders of inferior courts or administrative bodies. That goes back to the fundamental nature of the remedy: its strength lies in part in its limitation. However, the Court in an exceptional case has the capacity to direct the release of the applicant notwithstanding the existence of the order, in the same way in which an exceptional case, post-conviction, it may proceed to direct the release of an individual notwithstanding the existence of an order convicting him or her which has not been set aside on appeal in the circumstances considered by Henchy J. Any such case however is exceptional and the breach must be so fundamental that the obligation of the administration of justice and the upholding of constitutional rights requires the court to proceed in that fashion.
11 The difference of opinion between my colleagues is perhaps one illustration of the fact that it is open to doubt whether an inquiry under Article 40.4 is appropriate here. For my part I accept that the breach of fair procedures here was fundamental and moreover clear-cut. A hearing inter partes which proceeds in circumstances where parties are either unrepresented notwithstanding the fact that legal aid has been granted, or whether legal representative have had effectively no opportunity of preparing for case and taking instructions on the detail, falls far short of what the Constitution requires for all the reasons explained so vividly by Henchy J. in State (Healy) v. Donoghue  I.R. 325. There are a number of practical alternatives which the legal system provides on a daily basis. The case could be adjourned for a short period, or if it is considered that the matter is urgent, a court can sometimes proceed on an ex parte and contingent basis, even when the other side is represented and giving the right to have a full inter partes hearing within a short time. It is frustrating that three days of an urgent hearing in the High Court were required to get part of the way to that point.
12 However the claim here could have been brought by way of judicial review. Indeed, it might be said that an order by way of judicial review quashing the order of the District Court made on the 29th of October 2015, was necessary, to remove that hearing from the proceedings and allow a fresh hearing to proceed. Indeed, the High Court could not proceed to make an order of release under Article 40.4 without at least concluding as an initial step that the hearing on the 29th of October 2015, was not in accordance with fair procedures, and consequently that the order made was invalid. I accept that it is not sufficient that there was the possibility of a further hearing on the 26th of November 2015. As was set out in the grounding affidavit, in ongoing interim care proceedings it would not be open to the parties to seek to re-litigate matters that had already been dealt with in previous hearings, and in those circumstances the possibility of a fully contested application for an extension of the interim care orders would not cure the jurisdictional procedural defects in the hearing on the first interim care order. The solicitor also observed that his experience of interim care proceedings was such that he had “every reason to anticipate that this had started a series of events which will lead to the children remaining in the custody of the Child and Family Agency for months, if not years, before there is a final determination of the issue of whether the children should remain in the custody of the Child and Family Agency in a long term basis”. I accept therefore, that this meant that the order of the 29th of October 2015 had to be addressed, set aside, and the proceedings placed on a sound footing. However judicial review whether by way of certiorari or declaration is the obviously appropriate method of doing so. Article 40.4 is ill-adapted for that purpose, since it does not remove the order or proceedings from the landscape ,and furthermore comes with the necessary consequence of an order for release, which is not necessarily wanted or, if sought, desirable . However, the solicitor contended that if there was to be a proceeding by way of judicial review which was not determined prior to the 26th of November 2015, then he would anticipate that he would “meet in argument that my application was moot”. It does not appear to me that these two propositions can stand together. If indeed the order of the 29th of October 2015 could continue to have an impact both practical and legal on the care hearings, then it could not be said that any proceedings to quash that hearing would be moot. However, that is perhaps more easily said in hindsight.
13 In the judgment which he delivers, Mr. Justice MacMenamin considers that the breach of fair procedures here was of that fundamental variety which meant that the procedure under Article 40.4 was properly invoked. However, he considers that s.23 of the Childcare Act 1991 could have been applied so that the High Court could have immediately made an order for the interim care of the children pending a fresh application in the District Court. I do not disagree with this as the broad outcome of the case: the order of the 29th of October 2015 should be treated as of no effect, and the children should not be returned to their parents but should remain in the care of the CFA pending an application for a new interim care order. Indeed, in practical terms this is what occurred by voluntary agreement without the necessity of considering the jurisdiction under s.23. That is in my view the correct outcome of this case and I do not dissent from it, but I would have suggested a slightly different route.
14 It was suggested that some doubts have been expressed as to the constitutionality of s.23 of the Childcare Act, at least if applied in the context of Article 40 proceedings to prevent the making of an order of release, and for that reason it had rarely been invoked. Dr. Costello appears to consider that s.23 is simply not available in Article 40.4 proceedings presumably because the statute is limited to circumstances where the court finds or declares that a care order is invalid and is thus limited to judicial review. These matters were touched upon but not debated before us in detail and I refrain from expressing any concluded view. I would however consider that if it is correct that s.23 is in truth only available in judicial review, that that in itself a reason for not invoking the jurisdiction under Article 40.4 but rather treating the case as an application for judicial review. Where it is contended that someone is in unlawful custody, and therefore an inquiry under Article 40.4 should be commenced, but where the contention depends on an assertion on the invalidity of the order detaining the person on judicial review grounds, then in most if not all cases I consider that the greater flexibility of remedy of judicial review, of which s.23 is perhaps a specific statutory example make it more appropriate that the court would proceed, expeditiously by way of judicial review so that the flexibility of the remedy, and in child care cases the specific jurisdiction under s.23 would be clearly available to it. What was desired here was not in truth the release of the children or even the reassertion of the custody of the parents which was the only thing Article 40 could provide. Instead what was desired was the setting aside of the order of the 29th of October 2015 so that the question of interim care could be properly debated. Article 40.4 procedures were initiated as simply the most expeditious way of achieving this objective. Indeed, when the question of the removal of the children from the custody of the CFA arose (which was the necessary consequence of the order of the High Court under Article 40.4), it was not pursued.
15 This might appear a distinction without a difference. If it is possible to obtain judicial review expeditiously then the same end point is arrived at without perhaps much saving of time effort or cost. However the difficulty posed by this case, and the good sense of the solution which was arrived at might obscure the impact of the decision is applied more generally. If the High Court is to be held to have jurisdiction on an inquiry under Article 40.4 to quash or declare invalid routinely the orders of other courts or tribunals (in this case triggering the beneficial jurisdiction under s.23) and at the same time can make an order for release which is so staggered that it does not result in release but instead permits the curing of the defect without any change in custody or liberty, then the remedy under Article 40 would be quite distorted. Its field of application might be considerably widened, but the strength of the remedy diluted. Accordingly I do not consider that the route adopted here could necessarily be replicated in other fields. In my view the essential clarity of the remedy requires that it be applied only in those cases where there is a fundamental defect which can and must be remedied by an order for release forthwith. This case should be treated as arising from the very specific history of the application of the writ of habeas corpus in the field of custody of young persons, and the present day application under Article 40 in the context of a Constitution which guarantees the rights of children. On that basis, I concur with the order proposed in the judgment of Mr. Justice MacMenamin.
2. By order of the District Court, made under s.17 of the Childcare Act, 1991, (“the Act”), the children, a boy aged 14 years, and a girl aged 5 years, were placed in the care of the appellant (“the CFA”). Previously, the children had been in the mother’s custody and care. In the years previously, the relationship between the parents had been an intermittent and unhappy one. Both parents have serious and ongoing drug addiction problems. One social work report described the children’s circumstances in the months before the application to the District Court, as having been “chaotic”. Encounters between the parents were often aggressive, and sometimes violent. The children were witnesses to these events. The children, and their mother, had lived in a number of different locations, but had no settled home. They were exposed to the reality of their parents’ drug-taking and excessive drinking. While the two orders made by the District Court, under s.17 of the Act, were to have a duration of 29 days, they are now spent. However, for reasons outlined later in this judgment, I do not consider that the issues are moot.
The District Court Hearing
3. Childcare cases frequently present difficult choices for judges, where timing can be critical. This application to place the children in interim care was listed for hearing before the District Court on the 29th October, 2015. The mother obtained legal aid on an emergency basis. However, she did not have an opportunity to meet the solicitor assigned to her until the day of the hearing, and her solicitor did not receive much of the paperwork until 10 a.m. on the same day, the case being listed for 10.30 a.m.
4. The father was in a different and rather worse situation. He is functionally illiterate. He had not obtained legal aid. Accordingly, when the case was called over, he sought an adjournment. Both the mother’s solicitor, and the solicitor representing the CFA, had discussed the case beforehand. Both lawyers agreed it was appropriate that the matter be adjourned for one week in the circumstances. It would appear that both the lawyers took the view that, although the situation of the children required the intervention of the court, the matter was not considered critical at that point.
5. At the call-over, therefore, the mother’s solicitor sought to explain the difficulties to the District judge. He indicated that his brief conversation with the father led him to the view that he, too, required legal representation, and that his degree of illiteracy was such that it did not seem likely that he could properly represent himself. The father himself supported this application for adjournment. He informed the District judge that he had applied for legal aid some days previously, and had been assured that the application would be treated as one of priority. He told the judge about his literacy problem, and the fact that he had other significant physical ailments.
6. However, doubtless from concerns regarding the position of the children, the District judge was not disposed to grant the application for adjournment. She had read the papers in the case. She indicated that the hearing should proceed on the day. Although the case was called on at 10.30 a.m., the court had other business, and the hearing commenced one hour later. Even by then, the solicitor acting for the mother had not had time to complete reading the social worker’s report, or to take full instructions. This is understandable. The social work report is very detailed, and typed in small print. The difficulties which faced the father in his circumstances are obvious. The report contained a high degree of detail regarding neglect in relation to the children’s care. It detailed the social workers’ engagement with the family, since the first referral to the Department of Social Protection in June, 2013. The report recommended that the children be placed in care. It identified specific events occurring on identified dates, when matters of concern were said to have come to the attention of social workers. By then the engagement with the social services had gone on for a number of years.
7. Further difficulties arose. A relevant medical report only became available later on in the morning. The hearing nonetheless proceeded. Ultimately, and at the end of a four-hour hearing, the District judge made an interim order transferring custody of the children to the CFA, for a period of 29 days. (See also Childcare Amendment Act, 2013, s.1, which permits an order of such duration). The order also provided for access to be arranged in accordance with s.37 (1) of the Act.
8. The length of the hearing indicates that this was not by any means a routine application. Undoubtedly the judge was properly concerned as to the children’s welfare. But, not only were the interests and constitutional rights of the children engaged, so, too, were the interests and constitutional rights of the parents. Can it be said the parents’ right to fair procedure and effective legal representation had been vindicated? This was the question which fell for determination in the High Court.
Application for an Inquiry
9. On the 6th November, 2015, counsel on behalf of the mother brought an application to the High Court seeking an inquiry into the detention of the children, pursuant to Article 40.4.2 of the Constitution. Although the father was joined as a notice party to the application, senior counsel applied for him to be joined as a co-applicant, which application was granted. Both parents were represented therefore. By then, in response to the application for an inquiry, the CFA had filed in court a certificate from a social worker showing cause. The matter came on for hearing before Baker J. on the 10th, 11th and 12th November, 2015.
10. One of the main issues which now arise in this appeal in fact became clear early on in the High Court hearing. At the outset, counsel on behalf of the CFA raised a preliminary objection. He contended that the Article 40 procedure was inappropriate in childcare matters, and that the applicants were not entitled to assert breaches of their constitutional rights to fair procedure in such circumstances. He submitted that an Article 40 inquiry could only be grounded on breaches of the rights of persons who were alleged to have been placed in unlawful detention. For this reason, he submitted the parents were not entitled to bring an Article 40 inquiry concerning an alleged breach of their own rights, when it was the children who were the subject of the impugned order. Counsel submitted that, in the event that an inquiry was permitted, a court could find itself faced with a conflict between the interests and rights of the parents, on the one hand, and those of the children, on the other hand. This, along with other submissions raised in the High Court, will be considered later.
The High Court Judgment
11. In a careful and well-reasoned judgment, the High Court judge held that what had transpired in the District Court constituted a breach of the parents’ constitutional rights to fair procedures. (Para. 34 of the judgment). She pointed out that the CFA clearly had not considered the children to be at immediate risk; this was apparent from the fact that the solicitor was prepared to consent to a one week adjournment. Baker J. pointed out that the issue before the District Court was not a mere question of acceding to an application for an adjournment, but rather one where the application was based on specific grounds. As set out earlier, these were that neither applicant was in a position to proceed; in the mother’s case, because she had not had the opportunity fully to instruct her solicitor and consider the social work and medical reports; in the case of the father because, in addition, he had no representation at all, and because his illiteracy placed him at a significant disadvantage, such that he could not meaningfully engage with the court process.
12. Granting the order under Article 40, the High Court judge held that the application for adjournment should not have been refused; and that the parents’ rights to constitutional fair procedures had not been fully respected. She rejected the submission that the parents, as applicants, could not rely on a failure to respect their own rights to fair procedures in order to establish that the detention of the children was unlawful. She did not accept the argument that the rights of the parents might be placed in direct conflict with the rights of the children, and that the court could only accede to an application under Article 40, if the rights of the children had been shown to have been breached. The judge considered this argument conceptually flawed, as the Constitution presumed that the welfare of children is primarily to be found within the family, or in the case of unmarried parents, in the custody of the mother (See G v. An Bord Uchtala  I.R. 32, 113 ILTR 25). The High Court held that the balance of rights engaged could only be achieved by a full respect for the substantive procedural rights, both, of the children and the parents. The judge pointed out, importantly, that no guardian ad litem had been appointed to represent the children’s rights and interests, and that the vindication of the welfare rights of the children required affording fairness of procedure to the parents. Referring to the High Court judgment of KA v. Health Service Executive IEHC 288,  1 I.R. 794, (O’Malley J.), Baker J. pointed out that there was a continuity in childcare proceedings, and that a fundamental flaw at an early stage in such procedure could have a detrimental effect on the process as a whole.
13. The judge noted that there was a long history in the jurisprudence of the courts permitting Article 40 inquiries relating to the custody of children in certain circumstances. She referred to that line of authority, including In re Tilson, Infants  I.R. 1, The State (D & D) v. Groarke  1 I.R. 305,  ILRM 10,130 and more recently, N v. The Health Service Executive IESC 60,  4 IR 374. The propriety of such an approach was more recently considered by this Court, both in N v. The Health Service Executive (cited above), and also in the somewhat different context of an adult with a mental disability in FX v. Clinical Director of the Central Mental Hospital IESC 1,  1 I.R. 280. Baker J. pointed out that the Supreme Court had not expressed any concern regarding the utilisation of an Article 40 inquiry, in the circumstances of those cases.
14. At the conclusion of her judgment, the judge did not simply grant an order for the release of the children back into the care of the mother. Instead, there were negotiations between the parties, and the matter came before the High Court again on the following week, when an order was made providing for a phased return of the children. Subsequently, a renewed application was made in the District Court, again pursuant to s.17 (1) of the 1991 Act, and the children were placed in the care of the CFA, where they now remain.
15. The issues before this Court are set out in Charleton J.’s judgment. Apart from mootness, essentially four broad questions must now be considered. The first is whether it is appropriate to invoke Article 40 at all in cases of this category? If it is appropriate, when, and in what circumstances? Finally, assuming that Article 40 is appropriate, is it lawful for a judge, when ordering a release, to direct such release take place on a phased basis?
16. Prior to a detailed consideration of the appellants’ submissions, it is necessary to point out that N v. HSE, and FX v. The Central Mental Hospital, which are both judgments of this Court, bear in varying degrees directly on the points raised. The first of these judgments, N v. HSE, makes no criticism of the utilisation of an Article 40 inquiry. This was an Article 40 inquiry regarding custody of children. Both N v. HSE and FX v. The Central Mental Hospital, particularly the judgment of Denham C.J. in FX, consider the constitutional duty of the court, where it concludes there is a necessity to allow for a phased approach to implementation of an Article 40 order (see par. 76). Such an exceptional course will only arise rarely, and only with regard to the welfare interests of the person concerned in the order. (See also the judgment of Murray C.J. in N v. HSE 4 IR 374 at 470). I mention these comparatively recent decisions because, at times during the appeal, one had the impression that the appellants’ true case was, so to speak, a sub silentio reversal of both judgments. Stare decisis and precedent form a vital part of our jurisprudence. It was never submitted that either judgment was “clearly erroneous”. (See Mogul of Ireland v. Tipperary (N.R.) County Council  I.R. 260). No convincing submission was made that the principles established in either judgment might be distinguished from the instant appeal, or that some intervening event, save perhaps the enactment of Article 42A of the Constitution on the 28th April, 2015, had altered the law, so as to create a changed legal context. Both cases attracted a degree of attention. Yet, they were not directly addressed in submissions by the appellant. Counsel did, however, base submissions on a reading of Article 42A of the Constitution. This now provides that, in the resolution of all legal proceedings, the best interests of the child shall be the paramount consideration. This same principle is, and was at the time of the judgment of this Court in N v. HSE, contained in statutory form in s.24 of the Act of 1991.
17. Extensive reliance was placed upon the recent judgments of this Court in Ryan v. The Governor of Midlands Prison IESC 54 (Supreme Court, Judgment of the Court (ex tempore) delivered on the 22nd day of August, 2014, Denham C.J.), and Roche (also known as Dumbrell) v. Governor of Cloverhill Prison IESC 53. (Supreme Court, Charleton J., delivered on the 31st day of July). It is right to say that both judgments deprecate the use of the Article 40 procedure in circumstances other than when there is a defect on the face of the order which goes to jurisdiction. But there is an exception to this rule, that is, where there has been some fundamental “denial of justice”, (as Denham C.J. points out in Ryan IESC 14 at par 13). Charleton J.’s judgment in this Court in Roche is to the same effect. I would hold that what occurred in the District Court was a fundamental denial of justice, and of the constitutionally implied right to fair procedures. Fair procedures, especially in the circumstances, required that both parents be legally represented, and time given to take instructions, and comply with other procedural steps necessary (see, too, McMichael v. U.K.  EHRR 205, at par. 87). The effective representation of parents is not only a vindication of their own rights, but of the children’s rights.
18. Relying on the judgment of this Court in McDonagh v. Frawley  I.R. 131, counsel for the appellant submitted that, if there had been an error by the District Court, it was one within jurisdiction, and that, in effect, there was no challenge to the merits of the order, or how the District Court had balanced the rights and interests of the children, but rather the focus had been on the rights of the parents.
19. I would reject that submission also, for the same reason. The Court is not considering here a procedure and remedial flaw. The facts of this case establish there was a fundamental breach of the right of fair procedures. In McDonagh, O’Higgins C.J. specifically pointed out that an Article 40 procedure was appropriate in the event there was such a default in the fundamental requirements of justice that the detention might be said to be “wanting in due process of law”. (p.136 of the Report). In my view, this was precisely the situation here. This was decidedly not a situation where there had been a mere legal error, or slight procedural impropriety, or where the jurisdiction of the court had been inadvertently exceeded. Had this been so, then applying Higgins C.J.’s dicta, different considerations would arise.
20. Counsel made reference too, to dicta by Peart J. in W v. HSE IEHC 8, at paragraph 59, and Birmingham J. in Courier v. The Health Service Executive (Unreported, High Court, 8th November, 2013), where both judges deprecated the utilisation of Article 40 procedures in childcare matters. (See also a judgment of Munby J. in the English High Court in S v. The London Borough of Haringey  EWHC 2734 (Admin)). The facts of both cases are very different from the instant case. Neither Irish case involves a fundamental constitutional defect such as the absence of fair procedures. While I would share the reservations expressed in these judgments as to the use of Article 40 procedure in childcare cases, these reservations do not arise when there has been such a denial of fair procedures as to render the proceedings effectively a nullity.
21. Counsel further submitted that an Article 40 inquiry was ill-suited for the determination of childcare issues, bearing in mind that they are, in their nature, an inquiry as to what is to be done in relation to the welfare of the child, or children, in the particular circumstances pertaining. (See Southern Health Board v. CH  1 I.R. 219, per O’Flaherty J., pages 237 to 238), and the High Court judgment of L (T) v. L (V)  11 JIC 1001, The High Court, Unreported, 10th November, 1994, per McGuinness J.). While this is, generally, true, it does not abrogate the right of the parties to fair procedures, nor does it entitle an appellant to ignore what was held by this Court in N v. HSE. One cannot simply set to one side the observations made, inter alia, by Hardiman J. in this judgment (see the Report at  4 IR 374 at p.534 at par. 186). There the judge pointed out that an Article 40 inquiry was “one of the great bulwarks of personal liberty and of a free society”, in which every citizen had an absolute and unqualified right to have recourse to it on his own behalf and on behalf of another. As the judgment points out, most disputes regarding the custody of children should be dealt with under the Guardianship of Infants Act. The fundamental issue in N v. HSE was that the child in question was in the custody of the intended potential adopters who, this Court found, had no legal mandate to have custody of the child. Clearly, this would come under the heading of a fundamental denial of the natural parents’ constitutional rights.
22. It was contended that the transfer of custody here did not constitute “detention”, (See MF v. Superintendent, Ballymun Garda Station  I.R. 189), and that the provisions of Article 40, seen in their entirety, do not sit easily with the utilisation of the procedure in childcare cases. In this connection, counsel referred to Article 40.4.3 of the Constitution, which imposes a duty upon a High Court judge conducting an inquiry, and who considers that a law is invalid having regard to the provisions of the Constitution, to state a case to the Supreme Court and allow the applicant to be at liberty on such bail conditions as the High Court shall fix. This again is at variance with the observations of this Court in N v. HSE.
23. In considering whether or not the circumstances involve deprivation of liberty, the starting point must be the concrete situation of the individuals concerned. One must have regard to a range of criteria, including the type, duration, effects and manner of implementation of the District Court order. The situation was, in fact, that the children were placed under the complete supervision and control of the CFA. They would not have been free to leave the custody of the persons in whose care they were placed. Because of the invalid hearing, the children were, therefore, in that sense, held ‘without legal mandate’, and having regard to what I would hold was a denial of constitutional rights in the District Court, the children were, in the words of Article 40, not being “detained in accordance with the law”, or put in another way, without any legal mandate.
24. I am conscious of the fact that in MF v. Superintendent, Ballymun Garda Station  I.R. 189 this Court held that detention in a place of safety under ss. 20 and 24 of the Childcare Act, 1908 was not a deprivation of liberty in the true sense, as explained in that judgment. But the facts of MF are distinct from the instant case: here there is the critical antecedent question of deprivation of fair procedures; in MF this Court held that the District judge making orders concerning the child lawfully had “full seisin” of the case. This was not the position here. Moreover, N v. HSE now makes clear, Article 40 proceedings may, in certain circumstances, be appropriate where a child is held or detained without “legal mandate”. To my mind, the circumstances of this case are not, therefore, analogous to those in MF v. Superintendent, Ballymun Garda Station  I.R. 189. By implication, the judgments in N v. HSE, must be seen as placing a significant gloss on O’Flaherty J.’s observations regarding deprivation of liberty in MF. While the appellants’ case here is that an Article 40 procedure is inappropriate, one might note that in MF the very authority it relies on in aid of its case was itself an Article 40 inquiry into the detention of children.
25. This leads on to a further submission to the effect that, insofar as applications for custody of children had been made both before and after the enactment of the Constitution of 1937, those post-1937 should be seen in the context of the continued existence of habeas corpus procedure, as referred to by Walsh J. in the The State (Aherne) v. Cotter  I.R. 188, at page 200 et.seq. There is no such indication in the earlier authorities cited, or in a number of similar decisions of the High Court, that what was in question was actually a habeas corpus application. (See, to the contrary, Kent County Council v. CS  ILRM 292; Saunders & Others v. Mid Western Health Board  ILRM 229).
Section 23 of the 1991 Act
26. One of the issues in Aherne concerned what was held to be an unlawful inhibition on the right to appeal sought to be established by a court rules making committee. Nonetheless, relying on dicta of Walsh J. in Aherne, counsel submitted that, by analogy to rights of appeal, no legislation could be put in place which had the effect of abrogating the wording of Article 40 of the Constitution. Doubtless, this submission was made because of the provisions of s.23 of the Childcare Act, 1991, which provides:
“23. Where a court finds or declares in any proceedings that a care order for whatever reason is invalid, that court may of its own motion or on the application of any person refuse to exercise any power to order the delivery or return of the child to a parent or any other person if the court is of opinion that such delivery or return would not be in the best interests of the child and in any such case the court, of its own motion or on the application of any person, may -
(a) make a care order as if it were a court to which an application had been made by a health board under section 18,
(b) make an order remitting the matter to a justice of the District Court …; and where the matter has been so remitted the health board shall be deemed to have made an application under section 18,
(c) direct that any order under paragraph (a) shall, if necessary, be deemed for the purposes of this Act to have been made by a justice of the District Court …, or
(d) where it makes an order under paragraph (b), make a temporary order under paragraph (a) pending the making of an order by the court to which the matter or question has been remitted.” (Emphasis added)
27. The thrust of counsel’s submissions was that, if this section had the effect of constraining, or placing some inhibition on the operation of Article 40 which directs the release of an applicant “forthwith”, and not permitting any of the options set out in (a) to (d), by implication it would be constitutionally questionable. For this reason, it was submitted, the section relates only to judicial review proceedings, and not to inquiries under Article 40, the constitutional effect of which, if successful, is that the child or children should be released “forthwith”.
28. Section 23 does not appear to have been drawn to the attention of the Court in N v. HSE. But, the judgments of the court, particularly that of Murray C.J., (albeit framed in terms of constitutional rights), are, in fact, quite consistent with the words of s.23. There, this Court held that a phased transfer of the child from the adopting parents to the natural parents was “in the vindication of the child’s personal rights under Article 40.3 of the Constitution”, put another way, the phased arrangement was in the court’s fulfilment of its constitutional duty towards the child. These ‘paramount’ welfare rights are now given constitutional expression in Article 42A of the Constitution. The same considerations underlay the judgment of this Court in FX, albeit in a different context.
29. There is nothing in the wording of s.23 which indicates that it is confined in its effect to judicial review proceedings. A range of authorities make it abundantly clear that an order under Article 40 of the Constitution can have the effect of rendering an order of a District Court “invalid”, where, as here, there has been a denial of natural justice or fair procedures. Section 23 of the Act specifically uses the words “in any proceedings”; that should be read to include an inquiry under Article 40. This statutory provision does not abrogate or attenuate the interpretation or implementation of the provisions of Article 40, but rather must be seen in the context of the sequence in which orders may be made by the High Court, in such exceptional circumstances. I would emphasise that the availability of this statutory s.23 mechanism arises only because of the special status of this form of proceedings involving child welfare, and because of the existence of Article 42A of the Constitution. It should not be assumed, therefore, that any similar provision could be deployed in an area where these conditions do not apply.
30. A lawful application of s.23 renders it imperative, first, to ensure full compliance with the letter of Article 40.4.2. In such rare cases, the correct sequence of orders must be properly observed. In order to maintain the integrity of Article 40, a court may not make an order under s.23, unless and until it has held that the order of the District Court or Circuit Court is invalid. To hold otherwise would unlawfully inhibit the Article of its full effect. Section 23 enjoys the presumption of constitutionality, and may be invoked in “any proceedings”. The effect of an order for release “forthwith”, under Article 40, is that the child, the subject matter of the invalid court order, is at liberty. But, a finding of invalidity, and a consequent order for release, once made, does not debar the court itself, or an applicant in that behalf, thereafter, from seeking to protect and vindicate the welfare rights of children under Article 42A of the Constitution, in exceptional circumstances, such as arose in this appeal. In such a case, therefore, where a child is the subject matter of an order under Article 40, a court which has made an order of invalidity, after ordering the release of the child, may lawfully then, and only then, invoke or rely on the provisions of s.23 of the 1991 Act. The provisions of that section now find their constitutional basis in the provisions of Article 42A of the Constitution, maintaining the best interests of the child as the paramount consideration. Thus, s.23 allows for a situation where, on a finding of invalidity, the High Court may, as it were, in the legal sense, “step into the shoes” of the District Court, and make such order as may be permissible under the section for the vindication of the welfare rights of the child or children in question.
31. As in all human situations, there is a spectrum of circumstances where, at the extremes, orders for the protection and vindication of children may necessarily have to be made on an emergency or ex parte basis. But the position in the District Court here was not one of those cases. The position was one, rather, where, on the facts, the requirements of constitutional fairness would properly have dictated that the District judge grant a short adjournment.
32. It is, of course, self-evident, and now constitutionally enshrined, that childcare proceedings in the District Court, and in all courts, must have, as their paramount concern, the welfare of children. However, a number of rights are engaged in such proceedings. In The Child & Family Agency v. OA IESC 52,  2 I.L.R.M. 145, a judgment delivered in this Court on the 23rd June, 2015, I observed at p. 148:
“… in child care cases a number of constitutional rights are at stake. Among these are, first, a child’s right to have decisions made with his or her welfare as a paramount consideration; second, the rights both of parents, (designated in the Constitution as the natural custodians of children), and of children themselves, to be properly represented in proceedings where the outcome can be truly life-changing for all involved.”
33. 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.
34. 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.
35. The respondents submitted that the appeal is moot. I would not accept that contention. As was pointed out in KA (cited earlier at par 13), a procedural flaw of a fundamental nature, at the outset of a custody case, may have ongoing effects, which necessarily have continuity. Moreover, the issues arising bear not only on this case, but may have consequences in other cases. Thus, it seems to me that this case should be seen in the same light as those cases, such as Condon v. Minister for Labour  I.R. 62, and O’Brien v. Personal Injuries Assessment Board (No. 2) IESC 62 1 IR 328, where the Court should determine the appeal in the interests of the proper administration of justice. (cf. Lofinmakin v. Minister for Justice, Equality & Law Reform IESC 49,  4 I.R. 274).
36. For the reasons outlined herein, I would dismiss the appeal therefore.
A successful application pursuant to Article 40.4 concerning an unlawful detention would normally lead to an order for the release of the person concerned from the unlawful detention with no further order being necessary. In this case there are special circumstances, namely the welfare of an infant of tender years, to be taken into account when determining the manner in which effect may be given to the order of this court pursuant to Article 40.
Such an approach is further supported by FX v Clinical Director of the Central Medical Hospital  1 IR 280, where at para. 78 of her judgment Denham CJ held that there existed a jurisdiction to control the release of a person who is entitled to relief under Article. 40.4 where such a person is incapable of protecting themselves.
24. It is possible to take the view, however, that the stark nature of the order prescribed under Article 40.4 admits of only the making of an order or the refusal of an order. In considering that wording, the inflexibility of the orders available on an application for habeas corpus surely helps to inform the exceptional nature of this remedy. The plain words of Article 40.4 seem to require release, with no further order. Since this is about the vindication of the constitutional imperative that “no citizen shall be deprived of his personal liberty save in accordance with law”, can any order other than release be contemplated? The approach taken in The State (Trimbole) v The Governor of Mountjoy Prison  1 IR 550 should also be considered as well as the above cases. In that case, the prosecutor was not in Court at the time of the making of the order for release and as a result, the detainee was not immediately released. An application was made on behalf of the respondent for a stay on the order of release. At page 570, Finlay CJ stated that:
… having regard to the express obligation imposed by Article 40, s. 4, sub-s. 2 upon the High Court, unless satisfied as to the legality of the detention of a person seeking an enquiry under that Article to order his release, … it would be inconsistent with the Constitution for this Court to exercise any right to stay such an order.
25. The view may perhaps be taken that to suggest that a successful application under Article 40.4 could lead to anything other than immediate release is bypass the clear import of that constitutional provision. To permit a ‘controlled’ or ‘phased’ release seems at variance with the plain text of Article 40.4, which bears repetition at this juncture:
Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court … shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court … and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.
26. That stricture of immediate release must also inform the applicability of the remedy to child care cases in a context where the paramount consideration is the welfare of the child. How can it be right to take a custody dispute into a realm where a child is simply put into a state of nullity as regards any order for that child’s welfare? The reason that the child ever got to court in the first place was because of a dispute between the child’s parents or, as in this case, those parents and the Child and Family Agency. It is not enough to simply say that an order was stayed by agreement to enable a further order to be applied for in another court. Recently, doubts have been expressed by judges of the High Court as to the applicability of Article 40.4 remedies to child custody issues; see HSE v JM  IEHC 12 where Birmingham J emphasised the time required to ascertain “what is in the best interest of [the child]” and W v HSE IEHC 8 where Peart J would limit habeas corpus to “particular facts which justify an application for release”. These remarks go beyond considerations of policy and inform instead the nature of the remedy and its inapplicability within the constitutional structure to mistakes made by a judge of the District Court in the context of proceedings concerning the welfare of children.
27. Such facts as could ever justify a habeas corpus application in the context of child care are very limited. In Ryan v Governor of Midlands Prison IESC 54, the issue before this Court was the applicability of enhanced remission to a prisoner serving a sentence. The application had been preceded by correspondence. This Court found that there was no defect on the face of the order and that habeas corpus did not apply. Denham CJ quoted FX v Clinical Director of the Central Mental Hospital  1 IR 280:
65. In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach is to seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an application for judicial review may be the appropriate route to take. In such circumstances, where an order of the court does not show any invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not the appropriate approach.
66. An order of the High Court which is good on its face should not be subject to an inquiry under Article 40.4.2 unless there has been some fundamental denial of justice. In principle the appropriate remedy is an appeal to an appellate court, with, if necessary, an application for priority. Thus, the remedy under Article 40.4.2 may arise where there is a fundamental denial of justice, or a fundamental flaw, such as arose in The State (O.) v. O’Brien  1 I.R. 50, where a juvenile was sentenced to a term of imprisonment which was not open to the Central Criminal Court.
28. Denham CJ endorsed the line of authority that affirms that the lawful application of the jurisdiction created under the Constitution does not turn an error within jurisdiction into the destruction of that jurisdiction. She stated at paragraphs 14-18:
14. Most recently, in Roche (also known as Dumbrell) v Governor of Cloverhill Prison IESC 53, Charleton J. pointed out , and this Court would endorse:-
“ 21. There are many instances where, within jurisdiction, a court may fall into an error of interpretation or base its decision on a mistaken view of the law. This does not in consequence remove jurisdiction. There are legal structures in place to deal with such commonplace situations and these fall outside the obligation of the High Court to enquire into and to declare that a detained person is either lawfully detained or not”.
15. The proposition that not every defect or illegality attached to detention will invalidate that detention has long been established.
16. This is not a novel exposition of the law. In McDonagh v Frawley  IR 131 at 136 it was stated:
“The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution that a citizen may not be deprived of his liberty save ‘in accordance with law’ does not mean that a convicted person must be released on habeas corpus merely because some defect or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded.”
17. Also, in The State (Royle) v Kelly  IR 259, Henchy J. stated at p 269:-
“The mandatory provision in Article 40, s. 4, sub-s. 2, of the Constitution that the High Court must release a person complaining of unlawful detention unless satisfied that he is being detained ‘in accordance with the law’ is but a version of the rule of habeas corpus which is to be found in many Constitutions. The expression ‘in accordance with the law’ in this context has an ancestry in the common law going back through the Petition of Right to Magna Carta. The purpose of the test is to ensure that the detainee must be released if—but only if— the detention is wanting in the fundamental legal attributes which under the Constitution should attach to the detention.”
18. Thus the general principle of law is that if an order of a Court does not show an invalidity on its face, in particular if it is an order in relation to post conviction detention, then the route of the constitutional and immediate remedy of habeas corpus is not appropriate. An appropriate remedy may be an appeal, or an application for leave to seek judicial review. In such circumstances the remedy of Article 40.4.2 arises only if there has been an absence of jurisdiction, a fundamental denial of justice, or a fundamental flaw.
29. As the law stands, an applicant for habeas corpus who has been through a lawful process whereby there is detention in accordance with legal form, must show the following in order to obtain immediate release: that the warrant is fundamentally flawed, subject to the entitlement of the High Court conducting the enquiry to seek other documents to clarify any want of form, ambiguity or error as in Miller v Governor of the Midlands Prison IEHC 176 and MC v Director of Oberstown Detention School IEHC 222; or that the court did not have jurisdiction to make the order impugned; or that there was such a fundamental and egregious denial of procedural rights as entirely stripped the court of its jurisdiction. The Constitution requires that the remedy in Article 40.4 is not to be used to usurp the structures which it has set up or to operate as a parallel jurisdiction out of context with the functioning of the courts in the making of orders and the appeal of those orders.
Dissent as to the order on this appeal
30. This dissent is not as to the applicable principles, which accord with those set out in the judgment of MacMenamin J for the majority, but rather on the question of whether a complete denial of justice occurred which rendered the District Court order a nullity. The flaw of this application is perhaps shown by its consequences. There would have been nothing to stop the mother and father, as parents, simply taking the order of the High Court and resuming custody of their children. No protection would have been available for these children, because according to the logic of the judgment of the High Court in this case, no order would be available to it in consequence of the order of release of the children. Therefore, the paramount consideration of the welfare of the children would be set at nought. Within a context where the courts are the primary guardians of the Constitution, such an approach cannot be right.
31. The circumstances of the impugned hearing in the District Court involve a mother who had representation, but where there had not been enough time for her solicitor to consider social work reports, and an unrepresented and unlettered father who required legal assistance as well. It is difficult to know why papers had not been served on the mother’s solicitor beforehand. It is also hard to understand why, in such a serious context, an issue of the father’s separate legal representation was suddenly raised. Where was the conflict requiring separate representation for both mother and father? And where was the acknowledgement of the unreality that within a week, he could have applied for and obtained legal representation? A week is the time period, because an adjournment of a week was consented to by the Child and Family Agency, but the judge, apparently having considered the papers, decided that the case should proceed. Once a child care issue comes before a court, it is properly to be characterised as an enquiry. In an enquiry, the responsibility becomes that of the enquirer, here the District Court. As was said by O’Flaherty J in Southern Health Board v CH  1 IR 219 at 237, proceedings like this “are in essence an inquiry as to what is best to be done for the child in the particular circumstances pertaining.” The court, as enquirer, should be alert to danger to a child and in particular the consequences of a procedural decision. If the court is not so alert, then mistakes can be made. The consequences could be more than serious.
32. What is complained of here is an error as to procedure. Nothing worse than that was proved. Hence the dissent in this section is not on principle but on proof. There was a hearing. No doubt, even though the reports had not been read by the start of the case, people can catch up. It is an unknown factor as to what danger the children were in. The District Court took a strong view. Perhaps that was wrong. The burden of proving a complete casting off of jurisdiction is on the applicant who seeks to obtain habeas corpus notwithstanding an ostensibly valid court order. The circumstances proven before the High Court are insufficient to show that the court had thereby cast off its jurisdiction through procedural error. The circumstances do not show that the District Court was not pursuing the constitutional requirement that the welfare of the children be paramount, that is above any other consideration. It may be the case, but the burden of proof in that respect is a heavy one and rests on any applicant who seeks to assert the wholly exceptional circumstances applicable to habeas corpus as a remedy in this context. Perhaps the judge considered that in the context of involvement by social workers with the family over the previous two years, a point had been reached where the children were now in jeopardy of a serious kind. The circumstances of emergency which inform ss. 12 and 13 of the 1991 Act may have been reached. If they had, then the judge was constitutionally bound to apply the principle of the paramountcy of the welfare of the children in reaching her decision.
33. Once the matter was before the District Court judge and she had considered the matter, her duty was to make a decision in the best interests of those children. Perhaps in a judicial review application a consideration of the circumstances might show a failure in procedures, but on the papers that are before the Court on this appeal, what is not demonstrated is that the judge failed in her constitutional duty to apply the welfare of the children as the paramount consideration in her decision. It is also worrying that in the aftermath of the High Court order, there was no return of the children to the parents and that this situation where the Child and Family Agency are supplying the place of the parents could continue up to the present time. An appeal was available. Further, the solicitor for the parents could have made a further application to rehear some aspect of the case at a different time. Child care proceedings under the 1991 Act are of a continuing nature. Hence, the justification for the dissent is on this point.
Detention and childcare proceedings
34. There has been no argument on this appeal as to the limits of parental authority. Counsel for the Child and Family Agency have argued that for a child to be in the care of that agency is not for that child to be in detention. It would be inappropriate to attempt to define the limits of natural parental authority. Article 42.1 of the Constitution recognises the family as “the primary and natural educator of the child”. In describing the family in Article 41.1.1º as “the natural primary and fundamental unit group” of society and describing it as a “moral institution”, it guarantees in Article 41.1.2º to “protect the family in its constitution and authority, as the necessary basis of social order and as indispensible for the welfare of the Nation and the State.” This is difficult, however, to construe as an authoritarian precept since the references in Article 42.1 are to “inalienable” rights and duties in relation to parents to provide for “the religious and moral, intellectual, physical and social education of their children.” These are nurturing duties, as rightly the function of a father and mother is.
35. When the steps which necessarily may be required to take a child from its parents and the powers contained in the 1991 Act in that regard are considered, however, it is hard to avoid two conclusions. Parents as leaders of a family are entitled to nurture their children and those offspring are related to their father and mother through the duty of love, education and protection which is owed towards them. As the Constitution recognises in Article 42A, taking a child away from the embrace of its family is an ultimate step only possible where there has been real parental failure. Enforcing that power may not involve detention, but it certainly encompasses the exercise of the State’s coercive power to place children elsewhere than with their parents. While the older habeas corpus cases in relation to child care and education may now properly be regarded as superseded by Article 40.4, coercive measures to temporarily suspend or break family bonds through separation still may properly be described as ones of detaining children away from their parents. This is not to say that all care orders made under the 1991 Act amount to detention (for instance, some such orders may be made with the consent of parents who acknowledge that they are currently incapable of properly taking care of their children), but certainly, the importance placed on the institution of the family in the constitutional text seems to lead to the inevitable conclusion that, when the State removes children from the natural order of family life, such a removal may, depending on the circumstances, amount to detention.
36. Where other facts or events have rendered moot the live issues between the parties, this Court will generally decline to proceed to hear and determine the matter; see Murphy v Roche  IR 106, with Finlay CJ at page 110 stating that:
There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it.
Exceptional circumstances can override this principle. That may occur where one or both parties have a material interest in a point of law of exceptional public importance. In such circumstances, this Court may, in the interests of the due and proper administration of justice, determine a spent point as was determined in Irwin v Deasy  IESC 35. A moot issue may also be considered if a case is designated as a test case, as happened in Okunade v Minister for Justice  3 IR 152. Sometimes a pending decision may have a real consequence for a significant number of other cases; O'Brien v PIAB 1 IR 328 and Lofinmakin (a minor) & Ors v Minister for Justice  4 IR 274.
37. While discretion exists to hear a moot appeal, in reality this appeal may not be moot at all. There is ongoing litigation between the mother and father as parents in relation to the future care of their children by the Child and Family Agency. There have been several orders made in this context by the District Court and there will probably be more. It is capable of repetition that one or other parent will be unrepresented but that a court will feel that a decision simply must be made. In those situations of a conflict between the procedural rights of the parents and the requirement to consider whether an order is necessary, the ancient common law principle, now enshrined in Article 42A, should require a court to consider the best interests of the child.
38. Additionally, this case is important and as a precedent it carries the potential to bring further cases before the High Court in the context of a procedural dispute. Finally, without the chance to analyse s. 23 of the 1991 Act, the High Court in future might have been left floundering in the exceptionally rare cases that might potentially justify such an application in simply making a nullifying order with nothing to replace it in aid of the welfare of children.
39. The hearing of this case was thus amply justified even though the immediate circumstances were spent.
40. This judgment dissents only from the judgment of MacMenamin J for the majority on the question of whether the applicants for habeas corpus had proven that there had been a complete failure of jurisdiction by the District Court due to the procedural error. It follows that the appeal from the order of the High Court granting habeas corpus should be allowed.
41. 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.
I have read the judgments of my colleagues, MacMenamin J. and O’Donnell J. in this matter and I concur with their judgments. I want to add a few brief observations of my own. The underlying issue in this case is whether it is appropriate to make an application to the High Court under Article 40.4.2° of the Constitution in the context of care proceedings brought by the Child and Family Agency (“the CFA”) in the District Court which resulted in the making of an interim care order in respect of two children of the applicants/respondents (hereinafter referred to as “the Parents”). An interim care order under s. 17 of the Child Care Act 1991 (as amended) (“the Act of 1991”) was made in the Dublin District Court on the 29th October, 2015 removing the children who had been in the mother’s care and placing them under the care of the CFA. The Parents had and have serious drug addiction problems. As a result, the children had been living in circumstances described as “chaotic”.
Having applied for an interim care order pursuant to the provisions of s. 17 of the Act of 1991 on the 29th October, 2015 as set out above, the solicitor for the CFA and the solicitor for the mother had discussions before the hearing commenced. It also appears that the mother’s solicitor indicated the difficulties of the father to the District Court judge and made it clear that he faced particular difficulties in the absence of representation. Both the solicitor for the CFA and the solicitor for the mother were prepared in the circumstances to agree to a week’s adjournment of the proceedings in which the s. 17 order had been sought in order to facilitate the mother’s solicitor in preparing to meet the case being made against the mother and to allow the father to obtain emergency legal aid as the mother had obtained. What is significant is that the circumstances at that time were not so urgent as to require an immediate hearing. Unfortunately, the District Court judge did not agree and was disposed to proceed with the matter on that day. The conduct of the District Court hearing on the 29th October, 2015 has been described fully in the judgments of MacMenamin J. and Charleton J. and suffice it to say that in circumstances where the mother of the children had representation but the time available to her solicitor to prepare for the hearing was inadequate and in circumstances where the father had no representation, was functionally illiterate and was quite clearly not capable of properly representing himself on the day, it was concluded in the High Court that it was appropriate to direct the release of the children back into the care of the mother albeit that the order made in the High Court provided for a phased return of the children, following discussions between the parties.
One can understand the concerns of a District Court judge dealing with such applications which have at their heart the welfare of children. These children were living in very difficult circumstances and as the history of the case has shown, the children were subsequently made the subject of further care orders and remain in care at the moment.
The point I wish to make however is that whilst this particular case arose in circumstances where there was a flawed hearing before the District Court given the lack of fair procedures in circumstances where the mother’s legal representation was simply not able to deal with the matter in the time span available and the father had no legal representation and was not in a position to represent himself, the outcome of the proceedings might well have been different had the application before the Court been an application for an emergency care order pursuant to s. 13 of the Act of 1991. In that context it would be helpful to set out the provisions of s. 13 of the Childcare Act 1991, as amended. It provides:
“(1) If a justice of the District Court is of opinion on the application of the Child and Family Agency that there is reasonable cause to believe that -
(a) there is an immediate and serious risk to the health or welfare of a child which necessitates his being placed in the care of the Child and Family Agency, or
(b) there is likely to be such a risk if the child is removed from the place where he is for the time being,
the justice may make an order to be known and in this Act referred to as an ‘emergency care order’.
(2) An emergency care order shall place the child under the care of the Child and Family Agency for a period of eight days or such further period as may be specified in the order. . . .”.
Section 13(4) goes on to provide that an application for such an order may be made ex parte “if the justice is satisfied that the urgency of the matter so requires”.
It is important to emphasise, as has been pointed out by MacMenamin J. in his judgment, that child care proceedings in the District Court and in all courts must have as their paramount concern the welfare of children (see para. 32 of the judgment of MacMenamin J.). As can be seen an order pursuant to s. 13 may be made ex parte. Even if not made on an ex parte basis, it may be that the exigencies of the situation and the risk to the safety and welfare of the child or children may be such that an order has to be made there and then having regard to the welfare of the children in circumstances where the parents may not have an opportunity to be present, to be heard, or to be represented before the Court. It is clear therefore that in some instances the requirement to take steps to protect children may take precedence over the rights of parents to fully participate in such hearings. It is for precisely that reason that a s. 13 emergency care order subsists for a period of no more than eight days and may indeed be for a shorter period of time. Such a situation is far removed from the circumstances that prevailed in this case. What was before the Court in this case was an application for an interim care order and it is clear that there was no immediate risk to the safety or welfare of the children. It is in those circumstances that a short adjournment would have ensured that the Parents had appropriate representation before the District Court and a full opportunity to be heard by the District Court in respect of the application for an interim care order.
In all the circumstances I think it is important to point out that there is a difference between an application for an order for an emergency care order and an application for an interim care order. In the latter case, the requirement to afford fair procedures to the parties before the Court may necessitate the adjournment of the proceedings for a short period of time. It has to be emphasised that even in the context of an application for an interim care order, the circumstances may be such that that even a short adjournment may not be appropriate, having regards to the welfare of the child or children concerned. However, on the facts of this case I am of the view that a short adjournment of one week would not have prejudiced the CFA (who were willing to agree to such an adjournment) and would have facilitated the Parents in ensuring that they were properly represented before the Court. More to the point, such an adjournment would not have caused any risk to the children’s safety and welfare. In all the circumstances I would also dismiss the appeal.