THE SUPREME COURT
[Appeal No. 2016/126]
[Record No. 2016/11 JR]
O'Donnell J.McKechnie J.MacMenamin J.Dunne J.O'Malley J.F.G.
Applicant/Appellant
-and-
THE CHILD AND FAMILY AGENCY
Respondent/Respondent
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 28th day of June, 2018
Introduction
1. As has been acknowledged by each court to have delivered judgment in these proceedings to date, the matters raised herein are of the highest and most fundamental importance to Ms. G (also referred to in this judgment as “the appellant”) and her family. The three youngest of the appellant’s five children are currently in the care of the Child and Family Agency (“the CFA”, “the Agency” or “the respondent”), a situation which as it stands will pertain until each child reaches adulthood. This appeal arises out of Ms. G’s dissatisfaction with the current access arrangements in place for visits with her children as a group, insofar as she is limited to approximately five hoursper annumof family access where all three children are present. This is, by any measure, a very limited amount of such access.
2. The appellant sought to judicially review the Circuit Court orders, made in February, 2015, confirming the present visitation arrangements. She was refused leave by Noonan J. in July, 2015 on the grounds that she had not made out a stateable case and that in any event the application was made out of time. She later explained that she had been incorrectly advised by her lawyers on the relevant time limit for the bringing of such proceedings. Having had a further meeting with the Agency to discuss access in October, 2015, she again made an application for leave on the 18th/20th January, 2016, this time before Humphreys J. The learned judge adjourned the hearing and suggested that the appellant write to the CFA, which she did on the same day; the replying letter, dated the 27th January, 2016, confirmed the arrangements then in place. At the hearing of the leave application itself, Humphreys J. granted leave to Ms. G to challenge the Circuit Court orders above referred to and also the said letter of the 27th January, 2016. The substantive judicial review hearing was heard before Heneghan J. on the 7th October, 2016. By judgment delivered on the 17th October, 2016, described as an unapprovedex temporejudgment, the learned High Court judge refused each of the reliefs sought by the appellant.
3. Ms. G was granted leave to appeal directly to this Court from the decision of the High Court refusing the reliefs sought via judicial review. Leave was granted in relation to three points, which are set out in full at paragraph 27,infra.Broadly speaking, the issues raised are, first, whether an earlier refusal of leave to seek judicial review renders the matters raisedres judicataat a subsequent application and/or whether a subsequent application, following a previous refusal, would amount to an abuse of process; second, whether the letter of the 27th January, 2016, written by an officer of the CFA, contained a decision amenable to judicial review; and, third, whether the Court should remit the matter for a full hearing in the High Court on certain identifiable issues raised in the appellant’s judicial review proceedings. Before addressing the substance of these matters, it is necessary to set out in some detail the factual background to the proceedings so as to provide necessary and useful context.
Background and Procedural History
4. Ms. G has five children. Her two older children, who were aged nineteen and sixteen at the time of the hearing before Heneghan J. in October, 2016, had been in care for some time before being discharged into the custody of their father in 2006. As far as is known their living and custodial arrangements have been thus ever since. Her three younger children were taken into care on the 28th November, 2013. In October, 2016, at the time of the hearing, they were aged eleven, nine and five, respectively. The precise reasons which led to the Agency’s involvement are not directly on point on the issues raised in this appeal, though they undoubtedly have some relevance, even if in a limited way. It will therefore suffice to say that the basis for the application by the CFA, as explained in Ms. G’s Statement of Facts, related to her past history of psychiatric problems, the fact that she had given up custody of her children at times in the past, and the fact that she had taken the youngest three children out of this jurisdiction at a time when a supervision order of the District Court was in place. These matters, those referred to at para. 112,infra,and indeed much more beside, constitute the complex and somewhat troubled family history of Ms. G., her eldest two and their father, and the other three and their dad.
5. On the 7th October, 2014, Judge Geoffrey Browne, sitting in Roscommon District Court, made individual care orders under section 18(1) of the Child Care Act 1991 in respect of each of the three children. These orders provided that the care would be long-term, the relevant wording being “for so long as each remains a child” (thus these arrangements, if unaltered, will persist until 2023, 2025 and 2030 in relation to the respective children), and that Ms. G would have such access as would be determined by the Agency. The CFA grants the appellant supervised family access – meaning that all three children are present – for one hour at the time of each child’s birthday, one hour around Christmas and one hour around Easter. She thus has approximately five hoursper annumof family access where all three children are present. Such access is, as Humphreys J. put it, “minimal in the extreme.” She additionally has two hours of access every month with her daughter. Moreover, the three youngest children have no access visits with their two older siblings, nor is there any telephone or correspondence access with their mother outside of the supervised visits.
6. Ms. G appealed the care orders to the Circuit Court. She was represented at the hearing by solicitor and junior counsel. On the 19th February, 2015, Her Honour Judge Doirbhile Flanagan made an order affirming the earlier District Court orders. It was in relation to the last mentioned order that the appellant instituted the within proceedings, which of course have led ultimately to this appeal.
First Application for Leave to Seek Judicial Review
7. On the 27th July, 2015, the appellant applied to the High Court for leave to seek judicial review of the said Circuit Court decision and orders. Her application was refused by Noonan J. following anex partehearing. He declined to grant leave on the bases that Ms. G had not demonstrated any stateable grounds and that, in any event, the application was well outside the relevant three-month time limit. The appellant, who was representing herself, did not on that occasion seek an extension of time within which to bring the application. No appeal was taken against the refusal of the learned judge.
Second Application for Leave to Seek Judicial Review
8. On the 12th October, 2015, the appellant had a meeting with CFA staff. It took place at her home and was attended by Ms. Lillian Laheen, Social Worker, Ms. Deirdre Gallagher, Social Work Team Leader, Ms. Eileen MacNeill, Childcare Leader, and Ms. Elaine Molloy, Minutes Taker. During the course of this meeting, the appellant expressed her dissatisfaction with the current position and sought an increase in access visits, but no alterations were made to the prevailing access arrangements.
9. Then, on the 20th January, 2016, the applicant made a second application for leave to seek judicial review, this time before Humphreys J. She again sought to review the care orders, and also sought mandatory orders in relation to access. Ms G. informed the learned judge of the earlier refusal of leave and stated that she had been advised by her then lawyers that the time limit for seeking judicial review of the orders of February, 2015 was six months; this, of course, was incorrect, as the relevant time limit is only three months (Order 84, Rule 21(1) RSC). The relevance of this mistake was that if her lawyers’ advice had been correct then the original application before Noonan J. would have been in time, whereas as was, it was made outside the prescribed period. The appellant showed to Humphreys J. an email from her barrister to her solicitor containing this incorrect advice; the learned judge accepted this as evidence that she had been wrongly advised. A redacted version of this email was later exhibited to the appellant’s application. Humphreys J. decided that the application then before him should be made on notice. In addition, following his suggestion, the appellant immediately wrote to the CFA making specific proposals for increased access.
10. The resulting letter, which was dated that very day, was titled “Re: Formal Notice in Regard To Access.” It was addressed to a “Ms. Buckley”, meaning Ms. Helen Buckley, Principal Social Worker and Complaints Officer in Roscommon. Ms. G opened the letter by stating that “[b]y now you are well aware from the numerous telephone calls I have made to you that I am not satisfied with the poor level of contact I am having with my three children … and that the legal requirement under the Childcare Acts legislation that access be reasonable is not being complied with by the Roscommon branch of Tusla.” The appellant requested that the situation be remedied immediately by access being significantly increased. In particular, she strongly urged the Agency to increase the frequency of visits and extend the duration of each visit. She suggested three “fun family activities” with a view to ensuring that the children look forward to each access visit: an outing to the cinema; a picnic and game of football in the park; and a family trip to the swimming pool. She requested a reply to these proposals within seven days. She concluded by stating that “If I do not receive a reply directly from you within that deadline I will be applying to the High Court for a mandatory order that the current four hours per annum family access arrangements be dramatically increased immediately.” The letter is signed by the appellant, and was copied to the Chief Executive Officer of the CFA.
The Letter of the 27th January, 2016
11. The response from the CFA came by way of letter dated the 27th January, 2016. In short, the arrangements were left as they were, due to the wishes of the children. As the amenability of this letter to judicial review is the subject matter of one of the grounds of appeal before this Court, it is necessary to describe the letter in some detail. It is a single page document. It is headed with the logo of Tusla and recites the name of the Child and Family Agency in both the Irish and English languages. It is said to come from “the Office of the Principal Social Worker, Child and Family Agency, Government Offices, Convent Road, Roscommon.” Telephone and fax numbers for the Agency are provided.
12. As to its content, the letter opens by stating that “I wish to acknowledge your complaint regarding access received here on 21st January.” For present purposes, the critical part of the letter is the three paragraphs appearing under the heading “Increased access”. It is worth setting them out in full; they read as follows:
“I am aware that you would like increased access with your three children. The children’s social worker, Ms. Laheen, regularly reviews the access arrangements which includes the children’s views about access. Her most recent visit with the children was on 11th January last.
At present the children are clearly stating that they will attend access with you for their birthdays, Christmas and Easter and ask that two staff supervise these visits. The children have also expressed the wish that access is for one hour.
In order to encourage the children to attend access we need to listen to their wishes in respect of the length and frequency of access.”
13. The letter then goes on to refer to the proposals concerning the venue for access, a matter of no little importance to the appellant but one having no relevance for the purposes of this appeal. It notes that Ms. G’s children are developing in confidence and are more willing to express their wishes. The letter concludes by stating that “I trust this satisfies the queries you raised. Should you have any further issues you wish to raise with me please do not hesitate to contact me at the above address/telephone number.” At the foot of the letter, it is signed by “Helen Buckley, Complaints Officer”.
14. Also of relevance is that a second letter is attached to the reply, this one addressed to Ms. Buckley from Ms. Laheen and dated the 26th January, 2016. It is said to be written in response to Ms. G’s letter and sets out the social worker’s views in relation to the request as made. In essence, she states that the children are satisfied with the present state of affairs and that “in order to encourage the children to attend access … we have to listen to [their] wishes in respect of the length and frequency [of access]”.
15. The parties’ submissions on the amenability of the letter of 27th January, 2016, to judicial review are set out at paragraphs 34-36 (Ms. G) and 45-49 (the CFA),infra.The Court’s decision on this issue can be found at paragraph 83et seq. of this judgment.
The Judgment of Humphreys J. on the Second Leave Application
16. Counsel for the Agency appeared before Humphreys J. on the adjourned date, the 15th February, 2016, though it appears that he told the court that he had not had time to take full instructions from the social worker. In addition to challenging the care orders and seeking mandatory orders in relation to access, the appellant now sought to challenge the letter of the 27th January, as well. She also expressly sought an extension of time to challenge the care orders.
17. The judgment of the High Court ([2016] IEHC 156) was delivered on the 18th March, 2016. In relation to the letter, Humphreys J. noted at the outset that the sole reason given therein for refusing more access was that such access was contrary to the wishes of the three children then aged 4, 8 and 10. The learned judge first considered whether the previous application to Noonan J. inhibited the granting of leave on this second application. He considered that he had to have regard to the objective interests involved rather than automatically and mechanically exercising a discretion against the applicant (Sivsivadze v. Minister for Justice, Equality and Law Reform[2016] 2 I.R. 403). By reference to a number of factors – including the fact that Ms. G was now seeking, for the first time, an extension of time; the fact that she had produced documentary evidence regarding the incorrect advice from her legal advisers, which was relevant to the question of the interests of justice; and the fact that certain elements of relief, such as the letter, were not raised before Noonan J. and were therefore not subject to the time issue – Humphreys J. decided that the fresh application was not precluded by virtue of the previously unsuccessful application. While noting that it would be inappropriate for an applicant who had been refused leave to go before a new judge in the hopes of obtaining a more favourable outcome, this was not what Ms. G had done, as she had expressly volunteered the fact of the earlier application. In this regard he noted that Ms. G’s application, with its unusual facts, had more in common with the type of application entertained inJoyce v. Governor of the Dóchas Centre[2012] 2 I.R. 666, albeit thatJoycehad concerned an Article 40habeas corpusapplication.
18. Next the learned judge considered whether an extension of time was required or appropriate. Insofar as the application sought to judicially review the letter, it was within time. As to the challenge to the Circuit Court orders of the 19th February, 2015, that aspect of the application was clearly out of time. Based principally on the incorrect legal advice, the High Court judge was satisfied that the requirements of Order 84, Rule 21(3) were made out, namely, that there was good and sufficient reason to extend time and that the failure to make the application within time was due to circumstances outside the control of, and could not reasonably have been anticipated by, the appellant. He also noted that there may on the facts have been an impermissible delegation or abdication of the judicial function to the CFA as regards access arrangements, and that that would be a jurisdictional issue with continuing effect. He therefore made an order extending time for the bringing of the application.
19. Moreover, the learned judge determined that as he had heard from counsel for the respondent, having directed that the application be made on notice, the order extending time was one made following aninter parteshearing. This, he said, was fundamentally different to an order made extending time following an ex parte hearing, in that aninter partesorder would not normally be up for renegotiation at the substantive hearing. He noted that whilst a respondent, having been put on notice of a leave application, might choose not to put in affidavit evidence or make any submissions, having been given the opportunity to do so, such does not mean that the court must indulge that party’s presumption and permit them to reserve their position for “later”. Accordingly, it was his intention that such order would be final.
20. The remainder of the judgment concerns the judge’s evaluation of whether or not the appellant had met the threshold for leave. He looked, in turn, at whether there were arguable grounds to challenge the Circuit Court order on the basis that it interfered with Ms. G’s family rights and/or that the order improperly delegated to the Agency the function of determining access; whether the letter of the 27th January was amenable to judicial review; whether the refusal of additional access was invalid on the basis that it relied on the views of very young children and/or that it failed to give effect to the intention of court orders; and whether the refusal of sibling access was arguably invalid. The learned judge granted leave in relation to each such ground, albeit not always in respect of the precise points articulated by the appellant but rather on the general thrust of her points; to this end Humphreys J., drawing on the assistance that courts may give to lay litigants, granted her leave to reformulate her pleadings and to add additional grounds so that the real matters and legal issues in dispute could be identified. He also granted leave to the appellant to seek a mandatory order, addressed to the Circuit Court and/or the Agency, to reconsider access. The substantive hearing of the judicial review hearing was subsequently set for October, 2016.
21. It should be noted that, prior to such hearing taking place, the CFA appealed a single aspect of the leave judgment to the Court of Appeal, namely, the finding by the learned judge that it would not be open to the Agency to raise at the substantive hearing the issue of whether the extension of time was lawfully given. Ryan P., in a shortex temporejudgment delivered on the 8th July, 2016, took the view, based on a “variety of technical reasons of considerable procedural complexity”, that his initially pragmatic reservations to the appeal were incorrect and that a more technically correct approach was warranted. He felt that Humphreys J. was in error in shutting the CFA out from challenging the order extending time at the substantive hearing. Irvine J. delivered a concurring judgment, stating that she was satisfied that the hearing before Humphreys J. had beenex parteand that the Agency therefore needed to be afforded an opportunity to challenge the extension of time. Hogan J. also agreed in a short judgment. All three judges acknowledged the seriousness of the issues raised by the appellant and expressed their belief that the High Court would fully and comprehensively address such matters in due course. The Court of Appeal thus amended the order by specifying that the extension of time was without prejudice to the right of the Agency to challenge its validity at the full hearing. The Agency, in its submissions to this Court, was at pains to point out that its appeal was not against the extension of timeper se,but rather against the determination that the order in question had been granted on foot of aninter parteshearing.
22. Although Ms. G sought leave to appeal the judgment of the Court of Appeal to this Court, the same was refused by Determination dated the 9th September, 2016 ([2016] IESC DET. 112), partially on the basis that to grant leave on the extension of time issue would delay the hearing of the substantive matters raised in these proceedings.
The Judgment of Heneghan J. on the Substantive Hearing
23. The substantive hearing proceeded before Heneghan J. on the 7th October, 2016, with the learned judge delivering anex temporejudgment on the 17th October, 2016. At that stage the appellant was representing herself; the Agency was represented by a solicitor and junior and senior counsel.
24. In relation to the letter of the 27th January, 2016, Heneghan J. took the view that “no decision is pronounced in the said letter which would render it liable to judicial review” (para. 16 of her judgment). As to the rest of the application, the High Court judge characterised the appellant’s “core complaint” as that relating to access to her children. In relation to Ms. G’s argument that the Circuit Court had delegated to the Agency the right to determine access, Heneghan J. stated that this was based on a misapprehension of the Circuit Court order: the 1991 Act vests in the Agency the discretion to organise access and that is its primary function under section 18 of the Act. After an order is made under section 18, any review of the appropriateness of access arrangements, or any variations sought in respect of access, are matters to be addressed to the District Court pursuant to the 1991 Act. Heneghan J. thus stated that “the [appellant] has elected to bypass the mechanisms available to her by way of application to the District Court to address her concerns with regard to [access]”.
25. The learned judge next noted that the onus is on an applicant for judicial review to explain and excuse any delay in bringing the application. She recalled that at the first application for leave Noonan J. determined that no substantive legal ground was raised and therefore he had refused leave on the merits; on a secondary basis he had also held that in any event the application was well outside the time permitted under the Rules of the Superior Courts. Heneghan J. recited a submission of the Agency to the effect that in light of the decision of Noonan J. the matter wasres judicata,and/or an abuse of process, and accordingly that the court did not “have a discretion to act as a court of appeal” from the order of Noonan J. The learned judge agreed with that submission, stating at paragraph 21 of her judgment that “[t]his court, having considered the matter in full, is of the view that the matter is indeedres judicata, and that the decision of Noonan J. was final in that regard.”
26. Finally, Heneghan J. reiterated that Ms. G. seemed to misunderstand the function of the Agency following the making of a full care order by the court. She stated that the 1991 Act affords “two readily available remedies” and the appellant had chosen not to avail of either of them. Judicial review is a discretionary remedy and, where relief is granted in judicial review proceedings, it must be an appropriate remedy. The learned judge concluded that judicial review was not an appropriate remedy in the circumstances of this case, and thus refused the reliefs sought.
Issues on the Appeal
27. By determination dated the 6th February, 2017 ([2017] IESC DET. 13), the appellant was granted leave to appeal the decision of Heneghan J. directly to this Court, bypassing the Court of Appeal. Leave was granted on the following three issues:
i) 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 applicantres judicata; [Issue One]
ii) Whether the letter of the 27th January, 2016, contained a decision amenable to judicial review; [Issue Two] and
iii) Whether this Court should remit the matter for full hearing on the substantive issues identified by Humphreys J., which were identified by this Court as follows:
Submissions of the Appellant
Issue One
28. Ms. G points out that the issue ofres judicatain this case does not arise in the traditional sense, or indeed in any of the forms in which the doctrine is generally classified (Hogan and Morgan,Administrative Law in Ireland(4th Ed., 2010); see paras. 56 and 57,infra). Rather it arises in the context of an argument that the refusal to grant leave prevents her from making a fresh application seeking leave, regardless of the circumstances. She highlights a number of matters in this respect; for example:
- No extension of time was sought before Noonan J.;
- The email containing the incorrect legal advice was produced for the first time before Humphreys J.;
- The fact that the letter of the 27th January, 2016 postdated the first leave application; and
- The absence of any set aside application by the CFA regarding the successful leave application.
In short, the appellant adopts the approach taken by Humphreys J. and asks the Court to apply that view of the law in the context of theres judicataissue raised on this appeal.
29. Ms. G submits that her second leave application was a fresh one seeking new reliefs (that is, it challenged the letter of the 27th January, 2016, for the first time). Accordingly, that new matter, at least, cannot be regarded asres judicata. Even in respect of grounds and/or reliefs which are common to both applications she argues that, by its very nature, a leave application fails to meet virtually every element of what is required to constituteres judicata(para. 59,infra). Accordingly, she says that the finding of Heneghan J. that the application wasres judicatais entirely wrong and represents a misunderstanding and misapplication of the principles of that doctrine. Several authorities on the true nature of that form of estoppel have been referred to, as well as Wade & Forsyth,Administrative Law(11th Ed., 2014).
30. The appellant submits that the question ofres judicatashould be given very careful consideration in care proceedings (McDermott,Res Judicata and Double Jeopardy(Butterworths, 1999)) at para. 13.10) and that it has a very limited role to play in such cases(Re B[1997] 3 W.L.R. 1). The application of the doctrine must take into account the exceptional nature of the care jurisdiction and the potential impact on family lives. Ms. G further relies onAhmed v. The Medical Council[2003] 4 IR 302, where this Court held thatres judicatais not an inflexible doctrine and cannot be used to effect an injustice.
31. In her submission, the correct principle is that the court has jurisdiction to entertain a second application and should do so in an exercise of its discretion, taking into account all pertinent circumstances, including the fact that an earlier application was made and refused. She suggests that relevant considerations would include any significant change in circumstances or any new material or evidence being given for the first time.
32. In support of her contention that the proper approach should be based on discretion rather than estoppel, the appellant quotes extensively from the decision of Lightman J. inR (Opoku) v. Principal of Southwark College[2003] 1 All ER 272 (“Opoku”) at paragraphs 9-16. There it was held thatres judicatadoes not preclude a renewal of a leave application, but that such application may be dismissed as an abuse of process unless new material is placed before the court. To this, however, she adds the caveat that in this jurisdiction the overriding constitutional consideration of the requirements of justice means that matters other than the emergence of new evidence or changed circumstances may suffice (e.g. the incorrect legal advice).
33. Finally on this issue, Ms. G makes an argument based on the “continuing effect” of the Circuit Court order and the CFA’s decision, which are inextricably linked. It would be contrary to justice to prevent her from challenging such order and decision, this because of the “inherent continuity” present in childcare proceedings and the fact that a fundamental flaw at an early stage could have a detrimental effect on the process as a whole (seeS McG and JC v. The Child and Family Agency[2015] IEHC 733 andKA v. The Health Service Executive[2012] IEHC 288). In summary, the appellant submits thatres judicatais simply inapplicable to an order refusing anex parteapplication for leave to seek judicial review, as the policy considerations of finality of litigation and of preventing vexatious litigation have no application to her situation. However, even if the doctrine did apply, to deprive her of her right of access to the courts in this case would be an injustice.
Issue Two
34. The appellant submits that the general test as to whether a decision is amenable to judicial review is whether such decision is intended to have a binding effect or to influence administrative action in a way which affects rights and interests. There must be a decision, act or determination which is susceptible of being quashed; a mere expression of opinion does not have this effect. It must also impact upon some legally enforceable right of an applicant (Ryanair Limited v. Flynn and Anor[2000] 3 IR 240). Ms. G again refers to Hogan and Morgan,Administrative Law in Ireland(4th Ed., 2010 at para. 16.14) in support of the proposition that the modern tendency is to eschew a rigid classification of a decision as “binding” or “conclusive” and instead to examine whether the applicant has suffered a real or possible prejudice, and whether she has a sufficient interest in the matter.
35. The appellant submits that it is significant that the Circuit Court orders effectively left it to the CFA to determine all issues regarding access, without limitation. This was the view taken by Humphreys J. and it followed from the nature of those orders that the Agency’s letter of the 27th January clearly had legal effect. The CFA’s determination on access was therefore intended to be legally binding. In her view the letter cannot be regarding as simply being in the nature of an opinion or an account on the subject matter, for if it was the appellant accepts that such would not be amenable to review. The letter acknowledged her request for further access and failed to accede to same. It therefore amounts to a binding decision on the request, thus affecting the appellant’s right of access to her children. The letter must be seen as reinforcing the CFA’s original decision regarding access. As the effect of the letter was that no increase in access was granted, it must be amenable to judicial review.
36. It is submitted that it is clear from its terms that the letter amounted to a refusal of the request. No particular form of letter or particular expression of words is required to constitute a decision which is reviewable. A number of cases are referred to in support of this proposition: see,e.g. R v. Ethical Committee of St. Mary’s Hospital ex p H[1988] 1 FLR 512;R v. Metropolitan Police Commissioner ex p P[1995] 8 Admin. LR 6;Chief Constable of North Wales Police v. Evans[1982] 1 WLR 115; andR v. Richmond Upon Thames London Borough Council ex p McCarthy and Stone (Developments) Limited[1992] 2 AC 48. These cases illustrate that steps taken by administrative authorities which impact on people’s lives can and do constitute decisions amenable to judicial review, even if not expressly couched as ‘decisions’. Ms. G submits that the consequence of the letter is that she has suffered “real prejudice” in terms of not gaining further access to her children, and thus the decision of the CFA expressed in the letter is amenable to judicial review.
Issue Three
37. Finally, in relation to the third ground of appeal, the appellant submits that if the Court accepts her arguments in relation to Issues One and Two, it follows logically that the judgment and order of Heneghan J. should be set aside and that the matter should, pursuant to Order 58, Rule 9 RSC, be remitted back to the High Court for a full rehearing of the substantive issues set out by Humphreys J. at paragraph 27 of his judgment of the 18th March, 2016.
Other Considerations
38. In addition to the foregoing, the appellant makes a number of overarching submissions which are not directed at any particular ground of appeal. She refers to the protection afforded to the family under Articles 41.1 and 41.2 of the Constitution, the role of the family as the primary and natural educator of the child under Article 42.1, and the natural and imprescriptible rights of all children recognised under Article 42A. She quotes the judgment of Hardiman J. inN. v. Health Service Executive[2006] 4 IR 374, which noted the “demanding criteria” to be met before the right of the child to be reared by his parents, or the right of the parents to take decisions regarding the child, can be displaced. Thus there is even less scope for the operation ofres judicatain a case of this nature. She also refers to the judgment of MacMenamin J. inChild and Family Agency v. McG and JC[2017] 1 I.R. 1, where he re-emphasised that childcare proceedings must have the welfare of the children as their paramount concern. Here, given the limited family access that the appellant has with her children, and the potentially irremediable loss of contact, she requests a full rehearing and determination of all of the substantive issues upon which Humphreys J. previously granted her leave.
Submissions of the Respondent
Preliminary Observations
39. The CFA submits that the appellant has addressed the issues on this appeal in a vacuum and has not related those questions to her underlying complaints. It therefore makes three preliminary observations at the outset. First, it raises what it describes as a “fundamental issue” relating to whether the appellant ever had an arguable case concerning the nature of the impugned Circuit Court orders. The Agency submits that Humphreys J. extended time without appreciating the details of the statutory framework at issue in the proceedings, in that he suggested that the Circuit Court may have impermissibly left the access arrangements entirely at the discretion of the CFA. This is not correct, as the orders in question simply reflected the nature of a section 18 “care order”, as outlined in the overall legislative scheme. Accordingly, the Agency does not accept that the Circuit Court judge had a role in delegating to it the task of regulating access: it was the Oireachtas which made this decision, and no challenge has been made to the relevant section of the 1991 Act.
40. Second, the Agency has always accepted that if a justiciable controversy had arisen subsequent to the decision of Noonan J., it could not be argued that such issue was eitherres judicataor an abuse of process; clearly the exchange of correspondence in January, 2016 falls into this category. However, it should be noted that save for the introduction of the email next mentioned, the appellant has never argued that new material was placed before Humphreys J., or that the application made to him was anything other than essentially identical to that first made before Noonan J.
41. Third, the CFA observes that it is unclear exactly what evidence the appellant provided to show how she may have been misled as to time limits. The email of the 29th April, 2015, was redacted prior to being given to the CFA. The counsel and solicitors referenced in that email were not her legal team before the Circuit Court. She has not explained the circumstances of that change and neither has she informed the Court as to what legal advice relative to judicial review she may have received in February, 2015, at or about the time of the appeal hearing.
Issue One
42. The Agency submits that the absence of new evidence is the determining factor on the application: whether this amounts tores judicataor abuse of process is, in its view, immaterial. It says that the reason it used the phraseres judicatawas because the second application was identical to the first and based on the same material. Its resulting objection, however, is in reality based on abuse of process, as it accepts that much of the appellant’s submissions onres judicataare “uncontroversial”. However, even using the test suggested by Ms. G., the respondent states that, on the facts, there has been no significant change of circumstances, nor has any new material emerged. Moreover, it is clear from the transcript that Noonan J., in addressing the substance of her application, was satisfied that she had failed to identify a stateable case or arguable grounds by reference to the well-known criteria inG. v. Director of Public Prosecutions[1994] 1 I.R. 374. Thus, she lost on the merits. The CFA submits that the basis for the decision was clear cut, namely, that there was simply no evidence of an error of law on the part of the Circuit Court judge which would have justified invalidating the order of that Court. That was the primary finding, with the reference to the late moving of the application being entirely ancillary.
43. It is therefore submitted that a judicial determination was made by Noonan J. and, absent any new material or argument, the second application for leave was an abuse of process: it was in that sense that the phrase ‘res judicata’ must be understood. The case ofJoyce v. Governor of the Dóchas Centre[2012] 2 I.R. 666, referred to by Humphreys J., is irrelevant in the Agency’s view, as it relates to ahabeus corpusapplication under Article 40 of the Constitution. Moreover, although Ms. G contends that a determination on anex parteapplication lacks the finality necessary to give rise tores judicata, the CFA contends that there is Irish authority to the contrary. It points to,inter alia, my judgment inL.R. v. Minister for Justice[2002] 1 I.R. 260, where it was stated that “another judge of the High Court does not have jurisdiction to effectively overrule an earlier order of the same court” (see alsoLelimo v. Minister for Justice[2004] 2 IR 178). The decision inL.R.must, however, be viewed in the context in which that case was presented: no issue arose, no argument was made, nor any submission advanced as to what would be the position if there was any relevant change of circumstances, be they factual, legal or otherwise. Moreover, the issue arose solely through the prism of an amendment to the Statement of Grounds, with there being no suggestion of the doctrine ofres judicataor abuse of process applying. That case was therefore dealt with on the basis as stated.
44. The respondent also refers toOpokuas supporting its position that a renewed application for judicial review may be dismissed as an abuse of process unless new material is placed before the Court. In the instant case, no such material has been produced, and it is the absence of same which forms the fundamental basis for this submission. The fact of the matter is that the same caseon the same basishas been presented before two High Court judges and this amounts to an abuse of process and, arguably, isres judicata, with the precise label used being a distinction without a difference. Finally, what Heneghan J. said on this point must be read in this light, particularly in view of the respondent’s submission summarised at para. 20 of that judgment, namely, that the matter “isres judicataand/or an abuse of process.” All the learned judge was doing was accepting this submission and the omission of a reference to abuse of process is not of consequence, nor can any distinction between the concepts be dispositive of the appeal.
Issue Two
45. The Agency points out that the addressee of the appellant’s letter of the 20th January, 2016, was Ms. Helen Buckley, Principal Social Worker and Complaints Officer. This is something that would have been known to the appellant. It was in her latter capacity that Ms. Buckley responded on the 27th January. It is submitted that it was unfortunate that Ms. G did not mention in her letter that she was writing at the suggestion of the High Court, or that she had brought anex parteapplication which had been adjourned.
46. The CFA does not take issue with the general principles in respect of justiciability as set out by the appellant. However, it is submitted that Ms. G has again failed to take on board the statutory framework relevant to the proceedings, as her submissions are clearly premised on the erroneous view that the Circuit Court judge had delegated all powers concerning access to the CFA and that the letter of the 20th January, 2016, was a request to exercise that delegated authority. The reference by Humphreys J. to the Circuit Court orders “leaving access up to the Agency” reflects a misunderstanding of the statutory provisions – it is not the Circuit Court which left access to the Agency, but rather the Oireachtas decided upon this framework, subject to section 37, when enacting the 1991 Act. The respondent points out that the appellant herself had sought increased access at the meeting with the Agency on the 12th October, 2015. If she was dissatisfied with the outcome either on that occasion or on receipt of the subject letter, if was open to her to apply to the District Court pursuant to section 37 of the 1991 Act.
47. The respondent submits that it would be a concern if the letter of the 20th January, 2016, was sent in order to obtain a reaffirmation of existing access arrangements with the intention of then seeking a judicial review of the terms of the letter. Even if the decision of the 12th October, 2015, was amenable to judicial review, the same was out of time by the 20th January, 2016; it would not be permissible for an appellant to revive her entitlement to seek judicial review of a decision previously made, merely by seeking a written reiteration of that decision in order to restart the clock for judicial review purposes. In any event, the existing access arrangements had been gone into in great detail at the October, 2015 meeting and the letters in January, 2016 must be viewed against that background.
48. It is further submitted that it is clear from the terms of the letter that it was not a decision on access. The reply is purely an explanation of the existing arrangements and the reasons therefor. Ms. Buckley acknowledged the request for an increase in access but even adopting the criteria set out in the appellant’s submissions, it is clear that the letter was not intended to have “binding effect” or to “influence administrative action”. The Complaints Officer, from the terms of the letter, believed she was replying to a complaint. The letter was not a decision on access, intended to have legal consequences, but rather was an explanation of how matters then stood, and why. Ms. Buckley herself appears to have been under the impression that all she was doing was providing this information. Accordingly, the letter does not contain a determination by a public body imposing legal consequences on the appellant. Moreover, the Agency submits that it is unrealistic to suggest that the appellant has suffered a “real prejudice” as a result of a letter which merely restates the prevailing position regarding access.
49. Finally, the CFA submits that even if the letter was justiciable, the authorities are clear that as a matter of discretion relief should be declined where a more appropriate remedy is available (see, e.g., McGoldrick v. An Bord Pleanála[1997] 1 I.R. 497). The true question is whether a more appropriate remedy exists, and in the Agency’s view an application to the District Court pursuant to section 37 of the 1991 Act provides the answer. An order quashing the letter would merely require the Agency to issue a fresh decision or letter setting out the current position, which could then be the subject of a section 37 application.
Issue Three
50. On Issue Three, the respondent submits, by reference to the transcript of the hearing before Heneghan J., that there has already been a full hearing before Heneghan J. in respect of all of the substantive issues identified by Humphreys J. The learned judge had available to her the appellant’s detailed papers and had the benefit of oral and written submissions from the parties. In no sense could the hearing before Heneghan J. not be considered as being a “full hearing”. Although the respondent concedes that the appellant may, with the benefit of legal assistance, make more extensive relevant legal submissions if the matter were remitted for a further hearing, the nature and ambit of any such submissions have not been identified by the appellant.
Discussion/Decision
Issue One: the Estoppel Point
Res Judicata
51. For reasons which will quickly become apparent, the heading given to this section is somewhat of a misnomer, for I have formed the view that the real issue on this ground of appeal is not whether the decision of Noonan J. created an estoppel in respect of the issues raised and determined by him, but rather it is whether the second application was an abuse of process by reason thereof. I accept a number of the submissions advanced on Ms. G’s behalf to the effect thatres judicatahas little or no application to anex parteapplication for leave to seek judicial review. It is therefore necessary first to explain why this doctrine, as such, cannot be the determinative principle on the second leave application made in this case.
52. There is no need to dwell at any length onres judicata, for the applicable principles have been well rehearsed on many other occasions. The Latin phrase means “the thing [i.e.case] has been decided”. The doctrine has the effect that a final and conclusive judicial decision on the merits, pronounced by a court of competent jurisdiction, disposes once and for all of the material matters decided, so that they cannot thereafter be re-litigated between the same parties or their privies. This statement is an accurate description of the principle at a general level, though there are multiple other forms of orders, for example judgments by consent or default, which, depending on the circumstances, may or may not be captured by the doctrine.
53. Several different rationales for the principle have been advanced throughout the years. The dominant theories are that there is a public interest in the finality of law suits and that an individual has a right to be protected from multiple claims of the same nature at the instance of their opponent. Other factors, such as the need for economy of court time, the risk of inconsistent judgments and the desirability that decisions have the respect of the public and the court themselves, have also been canvassed (see McDermott,Res Judicata and Double Jeopardy(Butterworths, Dublin, 1999) at Chap. 3). These and other like concerns undoubtedly underpin the principle ofres judicata, which is a valuable tool, supporting themaxim“rei publicae ut sit finis litium”.
54. I will take but one historical and one more modern judicial explanation of the principle. As described by Holmes L.J. as far back asIrish Land Commission v. Ryan[1900] 2 I.R. 565:
“It is a principle in every system of jurisprudence that there should be finality in litigation. A judgment not appealed from binds the parties and privies for all time by what appears upon its face; and if it can be shown that, in the course of the action that resulted in the judgment, a certain definite and material issue not set forth in the judgment itself was raised by the parties and determined judicially or by consent, it would be contrary to public policy to allow the same parties to re-agitate the same matter in subsequent legal proceedings.” (p. 584 of the report)
55. InDublin Corporation v. Building and Allied Trade Union[1996] 1 I.R. 468, Keane J., as he then was, had this to say:
“The doctrine ofres judicata, applicable to this as to every final judgment or award of any competent court or tribunal, has the consequence that the parties are estopped between themselves from litigating the issues determined by the award again. The justification of the doctrine is normally found in themaxim interest rei publicae ut sit finis litiumand it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved - the anxiety, the delays, the costs, the public and painful nature of the process - there is at least the comfort that at some stage finality is reached. Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again.”
There are other like statements in a whole host of cases right throughout the common law world, where the doctrine is almost universally in use.
56. Reference at a general level has been made to Hogan and Morgan,Administrative Law(4th Ed., 2012), where it is suggested that there are four different forms ofres judicataat common law; limitations to the same effect have been created by statute, but this form of legal preclusion does not arise in this case. The first is “cause of action” estoppel, which precludes the same parties from re-litigating an action which has been finally determined by a court of competent jurisdiction. The second form ofres judicatais “issue estoppel”, which prevents the parties to earlier proceedings again litigating an essential feature – a certain definite material issue – which has previously been determined. The third is “a judgmentin rem[which] binds not only the parties to the litigation, but conclusively determines the status of a particularresor thing.” It can immediately be appreciated even from a basic understanding of the principle that none of these aspects of estoppel could possibly apply here: there has been no determination either in action or issue form between these parties and evidently this is not a “rem” case. Therefore, these strands of the doctrine can be discounted.
57. The final form, as mentioned by Hogan and Morgan, relates to the rule inHenderson v. Henderson(1843) 3 Hare 100, which states that a party will ordinarily be precluded from raising in subsequent proceedings grounds which could and should have been raised in earlier proceedings but which were not so raised. The rule, essentially, requires a plaintiff to advance the entirety of his or her case at the first opportunity and prohibits holding additional grounds or alternative arguments back in reserve for later use (Ashcoin Ltd (in creditors voluntary liquidation) v. Moriarty Holdings Ltd (No 2)[2013] 1 I.R. 567 at para. 7). Whilst evidently this does not arise in the instant case, that does not mean thatHenderson v. Hendersonhas no application in the public law sphere generally. For example, this Court held inArklow Holidays Ltd v. Bord Pleanála & Ors[2012] 2 I.R. 99 that where an applicant had sought judicial review of a local authority’s planning decision and subsequently sought to review the appellate decision of An Bord Pleanála, he would ordinarily be precluded from raising in any second set of proceedings a substantive point which could and should have been raised in the first judicial review. Nonetheless, as noted, the issue does not arise here.
58. The same authors, in further addressing the doctrine, caution against its use in administrative proceedings, on the basis that such decisions “rarely fulfil the requiredprobanda for res judicata” (para. 19–122). This quote must however be understood in its context, which refers to the fact that decisions of administrative bodies and tribunals themselves seldom create ares judicata. That, however, is not the situation here: the decision claimed to give rise tores judicataon this appeal is a decision of the High Court, not of a statutory or administrative body. Nonetheless, as I will explain in a moment, I am satisfied, for a variety of reasons, that a second application for leave to seek judicial review should not be viewed through the lens ofres judicata.
Some Essential Elements of Res Judicata
59. Some of the essential elements which emerge from the case law as being necessary to give rise tores judicataare as follows:
• There must be a contested action or issue;
• Between the same parties or their privies;
• In respect of which a final and conclusive decision has been given;
• On the merits, as properly understood;
• By a court of competent jurisdiction;
• And where all material issues and essential elements, even those demonstrably incorrect by way of outcome, though not collateral or incidental matters, are beyond the reach of further litigation.
See also para. 52,supra.
The limited scope of the application of this principle in administrative law largely stems from two principles of public administration, namely, that the body in question cannot exceed its jurisdiction nor can it fetter the competence what has been conferred on it.
What is a Leave Application?
60. If time permitted, it would be highly interesting to trace the historical development of the procedure of public law remedies which has taken place in this jurisdiction since the Supreme Court of Judicature Act (Ireland) 1877, an exercise in part conducted by de Blacam at paras. [45.01] to [45.03] of his book,Judicial Review(3rd Ed., Dublin, Tottel Publishing, 2017). A similar journey is undertaken inDe Smith’s Judicial Review(Woolf, Jowellet al, eds., 7th Ed., Thomson Reuters, London, 2013), which contains an informative history of the procedure relating to public law remedies in the United Kingdom since 1875 (see para. 15-080et. seq.). However, for present purposes, it will suffice to say that, since 1986, Order 84, Rule 20 of the Rules of the Superior Courts has required all applicants for judicial review under the Rules to first obtain the leave of the Court. Thus an application for judicial review is a two-stage process. As explained by Denham J., as she then was, inG v. Director of Public Prosecutions[1994] 1 I.R. 374 at 377-378:
“The application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the applicant has … a statable case.
… The aim is … to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstatable cases proceeding, and thus impeding public authorities unnecessarily.”
61. Several attempts, both directly and by way of analogy, have been made to classify the precise nature of such an application, generally considered under the broader context of applications madeex parte. On occasions it has been said to be, or be the equivalent of, an interim or interlocutory order, or a provisional one. However, the first two of these descriptive terms have their own problems.
62. At common law the phrase “interim” is more readily associated with injunctive relief than any other type of remedy. It is generally understood as referring to a temporary or a “holding” type of order, that is, one of short duration, restoring thestatus quoas it was before the offending act, or preserving what exists at the time of its making, and in either event lasting until the opposing party can be heard. When moved, the issue before the court does not concern the substance of the dispute, or its ultimate outcome, as such; rather it relates to what immediate relief (if any) is appropriate. Perhaps it may be an injunction, or alternatively an undertaking or the availability of damages might suffice. The term is widely in use in a variety of statutory forms, such as in (the now-repealed) section 3A of the Companies (Amendment) Act 1990 (interim examiners), where its duration was legislatively controlled and its granting legislatively prescribed (see, for example,O’Flynn v. Carbon Finance Limited[2014] IEHC 458). Other examples include section 44 of the Adoption Act 2010 and section 4 of the Domestic Violence Act 1996. The term is also used in various Orders of the Rules of the Superior Courts. There are many other examples of such orders, with most, if not all, sharing these common features.
63. The phrase “interlocutory” is different in both effect and scope, as well as in the range of matters which might attract its application. In most situations, it is designed to last until replaced by a final order of the court, either following a substantive hearing or one made by consent, unless of course a variation has been judicially granted in the intervening period. It is unlike an interim order for several obvious reasons, one of which is its intended duration. There are several legislative provisions under which orders described as “interlocutory” can be made, which, in reality, at least in some instances, are much more in the nature of permanent orders, rather than ones intended to be replaced at a later stage. Section 160(3)(a) of the Planning and Development Act 2000 comes to mind. Section 3 of the Proceeds of Crime Act 1996 and section 15 of the Criminal Justice (Terrorist Offences) Act 2005 contain other examples of statutory interlocutory orders. Again, the Rules of the Superior Courts also contain numerous examples. It seems to me that quite clearly this description, as understood for many years in the manner in which I have described, would not readily apply to an order made on a leave application. There is, however, some English authority to the contrary (paras. 69-72,infra). Nonetheless, in my view such an order fits more closely within the broad family of “provisional orders” than elsewhere, as they share many of the characteristics of such orders. However, it must be added that such description would equally be at home in paragraph 62, above, and in any event in some jurisdictions the term “provisional” covers all orders of a non-permanent nature. Context is everything.
64. Perhaps the best way to analyse the question posed is by looking at the nature of such an application, the application process and the control which the judiciary exercises in respect thereof. Assuming that the court has not directed aninter parteshearing, that initial step in the judicial review process:
(i) is moved without notice to and in the absence of the respondent(s), or even without papers having been served on that party;
(ii) is considered by the court solely on the documentation provided and submissions made by the applicant, who, even with utmost good faith, may not have or indeed have been capable of representing the complete picture;
(iii) is directed at gaining entry to the process, expressed sometimes as meeting a threshold requirement;
(iv) is capable of being set aside at first instance, by either the granting judge or any other judge of equal jurisdiction: no appeal is necessary to do so (see, for example,Adam v. Minister for Justice[2001] 3 IR 53 andKershaw v. Ireland[2016] IESC 35);
(v) is open for full review if the respondent, when notified, contests the grounds advanced or the reliefs claimed;
(vi) carries no presumption and offers no advantage to the applicant save that of entry to the process;
(vii) imposes no obligation on others, save perhaps where a stay or, more unusually, an injunction is granted, and, if accretion of rights does not follow, confers no enforceable rights on the moving party; and
(viii) is not an end in itself.
If, on the other hand, leave is refused, an appeal therefrom may be moved to the next appellate court, in this jurisdiction the Court of Appeal.
65. There are two other features which should be referred to. The first is that by definition such an order madeex partecould not of itself result in a determination of any issue “between the parties”. As only one party was before the Court, it could not be said that there was a contest between them. Secondly, could I refer toCornec v. Morrice[2012] 1 I.R. 804, where Hogan J. pointed to the “abundance of contemporary authority” which makes it “absolutely clear that the courts cannot constitutionally make an orderex partefinally affecting the rights of the parties.” Even though that case involved letters rogatory under the Foreign Tribunals Evidence Act 1856, the learned judge usefully explained what, in his view, was the nature of an order obtained without notice to the respondent (see alsoIn the Matter of Belohn Ltd & Anor v. Companies Acts[2013] 2 I.L.R.M. 407; [2013] IEHC 157). In conclusion, therefore, I think the more correct description of such an order is that it is provisional in nature. Thus, on this analysis of the law, such characterisation, together with the points above made, strongly suggest thatres judicatais not truly in play on a second application for judicial review.
66. It follows from what is stated that anex parteleave application and the adjudication thereon do not give rise to a “final” decision “on the merits” or “between the parties”; the absence of any one of these factors would be fatal to the application ofres judicata, and thus it obviously cannot apply where none of them are satisfied. Therefore, for each of these reasons, as well as the public law element of judicial review, the doctrine ofres judicatacannot act as aper sebar to prevent a subsequent application for leave where an applicant has previously been unsuccessful at that stage. Accordingly, a second or renewed leave application for judicial review should be dealt with on the basis of the judge’s discretion, as this is by far the more appropriate method of dealing with this issue. Though there is a surprising dearth of jurisprudence from this jurisdiction on the matter, it cannot in principle be the case that a refusal of leave could in all circumstances and forever preclude the applicant from later seeking judicial review. As such, to the extent that the judgment of Heneghan J. suggested that the matter wasres judicataas a result of the application before Noonan J., the same was in error.
Abuse of Process
67. However, even if notres judicatain one of the four technical senses mentioned by the appellant, or indeed otherwise, this does not necessarily mean that the second application ought not to have been struck out as an abuse of process. As above noted, it is telling that the Agency, in its argument on this point, has sought to distance itself from any form of estoppel terminology and instead explains the judgment of Heneghan J. by reference to a submission made to her, namely, that the matter was “res judicata, and/or an abuse of process”. The CFA seeks now to rely on the “abuse of process” limb of this submission to sustain the judgment under review, and indeed goes so far as to claim that this is what the learned judge ought be taken to have intended. The real question which therefore arises is whether the second application for judicial review, made before a different judge of the High Court, constituted an abuse of process on the facts of this case. Even though this issue does not technically arise from the leave application, nonetheless it is so inter-linked with theres judicatapoint that it would be remiss of the Court not to deal with it, particularly in view of the parties’ submissions.
68. As stated, the resolution of whether the renewed application amounts to an abuse of process is fundamentally for the discretion of the judge hearing the subsequent application, although it must be said at the outset that repeat applications should not be entertained lightly. The well-settled general rule is that it is not permissible to engage in a form of forum shopping in the hope of securing a more hospitable reception the next time around. The most noticeable exception to this is ahabeas corpusapplication under Article 40.4 of the Constitution, which exception is justified on historical grounds and whose remit cannot easily be extended beyond that enclosure by analogy. However, the courts in England at least have shown themselves prepared to entertain renewed or fresh leave applications in limited situations, primarily where there has been a material change of circumstances, where new evidence has come to light which could not reasonably have been obtained at the time of the original application, or where the law has significantly changed in the intervening period: see, for example,R (Opoku) v. Principal of Southwark College[2003] 1 All ER 272, [2003] 1 WLR 234 (“Opoku”), discussed below. Of course the requirement ofuberrima fideswhich applies on allex parteapplications has an even more significant impact in this context as a repeat applicant must show the utmost good faith by disclosing all relevant information which he or she has, or with due diligence should have; this obviously includes the fact of the original, failed application. To Ms. G’s credit, she did just that. As a rule, the existence of the previous application and the grounds upon which the application is renewed ought to be clearly and frankly disclosed not only orally, but also by way of affidavit.
69. The appellant has quoted extensively from theOpokucase. There the claimant sought judicial review of the decision of the principal to exclude him from the respondent college and the Governors’ dismissal of his appeal. He sought leave to challenge such decisions on two grounds. He was granted leave on one but not on the other, which he did not appeal. After his claim was dismissed at the substantive hearing, he renewed his application for leave in respect of the latter ground before the trial judge at first instance. The issue to be determined was the appropriate course to be adopted in that situation. Though the circumstances of the case do not quite approximate those of the within application, in that Ms. G was refused on all grounds and sought to renew her entire application, whereas Mr. Opoku was at least partially successful initially, the case is still instructive as to the considerations which might apply. Lightman J. first ruled out the application ofres judicatato the presenting situation:
“9. Before looking at the Civil Procedure Rules, it is appropriate to consider the legal status of the decisions refusing permission. They are interlocutory judgments which (by reason of the fact that they are not final) do not bring into play the doctrine ofres judicata: seee.g. Phipson on Evidence, 15th ed (2000), para 38–05. That doctrine accordingly does not preclude a renewal of the application, but a repeat application may be dismissed as an abuse of process unless ‘new material’ is placed before the court: see e.g. Wagstaff v Jacobowitz[1884] WN 17.”
70. Having looked at the Civil Procedure Rules, the learned judge concluded that they imposed no specific limitation on the power of the High Court to grant leave on a ground where permission has previously been refused (para 13). He continued by stating that:
“[T]he Rules make plain that an appeal to the Court of Appeal, and not a fresh application, is appropriate where a challenge is made to the correctness of such a refusal. The common law doctrine ofres judicatadoes not preclude a fresh application. But a fresh application unless based on fresh material may constitute an abuse of process.”
71. In elaborating on the circumstances in which a fresh application may be made, the trial judge explained as follows:
“14. It is important that there should be read into the Rules no limitation on the jurisdiction of the High Court to grant permission on a fresh application. There may be circumstances where notwithstanding the previous refusal of permission a second application may be appropriate or necessary. The previous decision may have been correct and not open to challenge at the time the decision was made, butcircumstances may have materially altered, new evidence may have come to lightorthe law may have significantly changed(e.g.by a reversal of a decision of the Court of Appeal by the House of Lords). It would be calculated to cause inconvenience and injustice if the High Court were precluded from granting permission in such circumstances: consider Spencer Bower, Turner & Handley,Res Judicata,3rd ed (1996), para 172. Rather than reading any such limitation into the Rules it is appropriate to reflect the need for caution in the exercise of the jurisdiction and the need for respect for the legitimate expectations of previously successful defendants in the principles governing the exercise of the discretionary jurisdiction.
…
16. Following the guidance afforded by Buckley LJ [in Court of Appeal inChanel Ltd v F W Woolworth Co Ltd[1981] 1 WLR 485], the relevant principle must be that the court should give proper respect to the provisions of CPR r 52.15, which lays down the normal appropriate route to be followed where an application for permission has been refused and to the legitimate expectation of the defendant that in the absence of an appeal to the Court of Appeal the threat of litigation is at an end. The court should only exercise its discretion to grant permission where the claimant establishes that there has beena significant change of circumstancesor that he has become aware ofsignificant new facts which he could not reasonably have known or found out on the previous unsuccessful applicationor that aproposition of law is now maintainable which was not previously open to him. If the fresh application merely relies on evidence which was available and on propositions of law which were reasonably maintainable on the previous unsuccessful application, permission should be refused as an abuse of process.” (Emphasis added)
72. On the facts of the case, it was clear that the claimant’s application did not comply with the test just set out, and accordingly permission to proceed with a claim for judicial review was refused.
73. The appellant, while describing this authority as “instructive and helpful”, nonetheless submits that while the discretionary factors mentioned by Lightman J. are undoubtedly relevant, they are not an exhaustive list. The overriding consideration in the Irish context must be the requirements of justice in any particular case. Ms. G suggests that it would be unwise to constrain the exercise of the Court’s jurisdiction by a limiting set of factors, and instances the within case as a good example of why other matters may be relevant to the exercise of the Court’s discretion.
74. Perhaps unbeknownst to the appellant, there is more recent authority from the UK that, though not cited by Ms. G, would seem to support her point and sets a lower threshold for success on a second application for judicial review. TheOpokutest was applied by Goldring J. inR. (on the application of Smith) v. Parole Board for England and Wales[2003] EWHC 1610 (Admin) (“Smith”), where the learned judge said that “[t]here has been no change of circumstance such as envisaged by Lightman J inOpoku,a decision with which I agree” and accordingly refused permission to seek judicial review. However, on appeal ([2003] EWCA Civ 1014; [2003] 1 WLR 2548) it was stated by the Court of Appeal that:
“This court is concerned as to whether Lightman J’s approach is an appropriate one. I have already indicated that I approve of the broad discretion to which he referred in paragraph 14 of his judgment, but I have very real reservations as to the limitations upon that discretion which he inserts in paragraph 16. Certainly the matters to which he refers in paragraphs 16 are ones which, if satisfied, could cause a judge to grant permission for a further argument to be advanced in relation to an additional ground. However,in my view what is referred to by Lightman J is not exhaustive. The discretion of a judge hearing an application for judicial review is wider than that indicated in paragraph 16. Of course, where, as here, a judge has heard detailed argument, any judge who is conducting the hearing of the main application is going to require significant justification before taking a different view from the judge who granted permission. However, if he comes to the conclusion that there is good reason to allow argument on an additional ground, bearing in mind the interests of the defendant, the judge can give permission for that to happen. It is not unusual for a situation to arise, even in the course of a hearing, where it becomes apparent to the judge conducting that hearing that the interests of justice would be best served by the hearing taking into account arguments on matters which relate to a ground in respect of which permission has been refused. There obviously has to be real justification for permitting that to happen; but judges can be relied upon to ensure that the discretion is not misused. It is the obligation of parties to applications for judicial review, as in the case of all litigation, to give as much notice as possible of their full case and to bring forward their full case at the start. However,quite apart from the specific circumstances indicated in paragraph 16 of Lightman J’s judgment, there are going to be other situations where good sense makes it clear that the argument should be wider than it would otherwise be if it was confined to the grounds where permission has been granted. I would not seek to anticipate all the situations where that could happen. As long as a judge recognises the need for there to be good reason for altering the view of the single judge taken at the permission stage, no further sensible guidance can be provided. The circumstances which can occur are capable of varying almost without limit, and so each case must be considered having regard to its circumstances. The idea that there has to be a new situation for the permission to be extended is one which I would regard as wrong.” (para. 16) (Emphasis added)
75. However, it would appear that the matter is not closed. More recently, inNeshanthan v. Immigration Officer, Heathrow Airport (Terminal 3)[2017] UKUT 77 (IAC), Upper Tribunal Judge Gill discussed the Court of Appeal’s treatment ofOpokuinSmithin the following terms:
“90. If there is power to reconsider a decision to refuse permission on certain grounds, the key points which emerge fromSmith v Parole Boardare as follows. There is a wide discretion. A judge should consider factors such as whether there was full oral argument when permission was refused on some grounds and whether any circumstances have changed materially. If there was full oral argument and the circumstances have not changed, the judge hearing the renewed application should require significant justification before taking a different view from the judge who granted permission on limited grounds. However, the Court of Appeal considered that the idea that there has to be a new situation, i.e.that the circumstances must be shown to be materially different, was wrong and that the only guidance that could be given is that each case is to be decided on its own circumstances and that it is necessary for there to be good reasons for taking a different view from the view of the single judge who granted permission on limited grounds.
91. However, the judgment of Lightman J inOpokuhas more recently been referred to or cited without any adverse observations in, for example,R (Ewing) v Secretary of State for Justice[2008] EWHC 3417 (Admin) (at para 22) andBA & Others v SSHD[2012] EWCA Civ 944 (at para 27 (f)).
92. If there is power to reconsider a decision to refuse permission on certain grounds, I draw the inference that the issue is not settled as to whether a material change in circumstances is necessary. …”
76. It is surprising that no line of Irish authority on this point, whether similar toOpokuor otherwise, exists, or at least none that was drawn to the Court’s attention. The questions thus arise whether this is an appropriate test to adopt, and, if so, whether a grant of leave on a renewed or second application should be entirely at the discretion of the Court hearing such application, or whether the presence of one of the factors identified inOpokushould be a prerequisite to granting leave. It appears to me that the correct approach is that the discretion of the court should not be prescriptively circumscribed when hearing a second application. To do so might not only involve setting out certain criteria to reflect the variable factors which cases to date have identified as being relevant, but would also involve an attempt to anticipate future situations, the details of which are not, and by definition cannot be, self-evident. Matters other than those presently discernable from existing case law are sure to emerge, even if only rarely and in unusual circumstances. Any rigid course might therefore create an unnecessary precedential bar for those hearing such applications. Accordingly, I believe that a broad discretion is the approach most likely to yield a just result having regard to individual interests and those of the administration of justice.
77. That is not to say, however, that all matters adverted to should have equal importance: this, in my view, is not the situation. Foremost in a judge’s consideration should be the factors identified inOpoku,absent which an applicant may have very considerable difficulty in convincing a judge that an abuse of process is not in play. Whilst I do not rule out that other matters may be of such persuasiveness as would justify a leave order, such are likely to be rare, if not exceptional. It is true that this sets the bar quite high, but such is necessary so as to preserve the integrity of the judicial review process, to underpin the legitimacy of the principle of finality of litigation, and to satisfy the public’s expectation that once a case is over, it is indeed over. It follows that in any case where there is no good ground for renewal, any renewed application would amount to an abuse of process.
78. Turning now to the facts of this case, I will deal first with the application for an extension of time, which, as we have seen, was based on the email containing incorrect legal advice (para. 9,supra). It should of course be noted that no such application was in fact made before Noonan J.: it was not therefore refused. That email was undoubtedly a piece of material evidence which was capable of satisfying the test for an extension. Had the same been exhibited in the first application, it seems highly likely that the learned judge would have considered that the conditions for granting an extension of time pursuant to Order 84, rule 21(3) RSC were satisfied. That the applicant did not do so is not surprising, given that (i) she was a lay applicant dealing with an unexpected and adverse situation on her feet and (ii) she had had no reason prior to the hearing to consider that the email would have any relevance, or that she would even need to have it to hand, as in accordance with its terms the application was then in time. To this extent, I consider that the lack of compliance with the matters outlined inOpoku, in light of the two factors just mentioned, should not act to preclude Ms. G from relying on the email on the second application. Were such combined factors not relevant, I might well have taken a different view. However, in the circumstances, Ms. G was entirely justified in making the application for an extension of time before Humphreys J., and the learned judge was equally entitled to grant it: in no way did that amount to an abuse of process.
79. That, however, is not the end of the matter. Noonan J. did not refuse to grant leave solely because Ms. G was out of time but also, indeed primarily, on the basis that she had not made out a stateable ground for judicial review. Even with the time justifiably extended, what basis was there to suggest that the renewed application on the substance was anything other than an abuse of process, given that a High Court judge had already determined that the appellant had not met even the admittedly low threshold for leave to seek judicial review? In this regard Ms. G has pointed to the fact that she was seeking new reliefs in the second application which were not sought in the first application, namely, the challenge to the letter of the 27th January, 2016. So far as this letter is concerned, plainly the reliefs sought could not be captured byres judicataor labelled an abuse of process on the grounds herein discussed. The amenability of that letter to judicial review at all is discussed separately below.
80. However, beyond the successful extension of time and the attempt to review the letter, it is not at all clear that there was anything else about the second application which was distinct from the first. Although it is difficult to argue with Humphreys J.’s evaluation of the application for an extension, the fact remains that the substance of the grounds put forward by Ms. G had been found insufficient for leave purposes. The erroneous legal advice regarding the time limits for judicial review, the fact that no application for an extension had previously been made, and the new challenge to the letter of the 27th January are not of any clear relevance to this finding; it is certainly not obvious to me how any of these factors could amount to the kind of change of circumstance which would entitle an unsuccessful applicant for judicial review to renew or reissue their challenge. The difficulty for Ms. G is that the “new material” placed before the Court – the email containing the incorrect legal advice – is relevant only to the issue of the extension of time. I cannot see how it could have any effect on the actual substance of the application.
81. Humphreys J. clearly took a very different view of the merits of the intended grounds of review than did Noonan J. The decision on whether or not to grant leave may sometimes be a marginal call on which reasonable judges could very well differ. However, leave having been refused, an applicant is not entitled to try her luck again with a different judge. Simply put, none of the matters raised by the applicant – while undoubtedly having a bearing on the extension of time – seem relevant to dislodging the fact that she had already been refused leave on the merits.
82. Heneghan J. was perhaps not as precise in her language as she ought to have been, although such will sometimes be the case with anex temporejudgment. As previously stated, the learned judge was incorrect in purporting to find that the second application for leave was captured by the principle ofres judicata; for the reasons above set out,res judicatasimply had no application here. However, insofar as the merits of the second application are concerned, leaving aside the letter, it is clear that the same grounds had previously been considered by Noonan J. In the absence of fresh evidence or changed circumstances – and the appellant has not pointed to any such factor which could be relevant to the merits of her application, or even other factors mitigating the original refusal – it must be concluded that the second application amounted to an abuse of process, or was at least capable of being so viewed in the learned judge’s discretion. So understood, I would hold that although Humphreys J. was entitled to grant an extension of time, there was no basis to revisit the determination already made by Noonan J. on the merits of the leave application. Heneghan J. was correct in holding that the attempt to renew the leave application on the same grounds, in the absence of a change of circumstances, as above described, was an abuse of process.
Issue Two: whether the Letter of the 27th January, 2016 contained a Decision amenable to Judicial Review
83. Needless to say, as the letter was written some six months after the initial leave application was refused by Noonan J. in July, 2015, its amenability to judicial review was not canvassed before the learned judge. Accordingly, notwithstanding the views reached on Issue One, there can be no question of the purported challenge to the letter being captured by the principle ofres judicata, or being struck out as an abuse of process due to a previously unsuccessful challenge thereto. However, that does not of itself mean that Ms. G is entitled to seek judicial review of the letter. The next issue for the Court to determine is whether Ms. Buckley’s letter contains or amounts to a “decision” of the Agency such as may be judicially reviewed by the appellant.
84. In his judgment of the 18th March, 2016, under the heading “Is the letter of the agency refusing additional access amenable to judicial review?”, Humphreys J. said the following as regards the reviewability of that letter:
“29. Given the nature of the Circuit Court order, leaving access up to the agency, the agency’s letter of 27th January, 2016, declining the request for additional access, clearly has legal effect. The determination of the agency as to what access is to be afforded is intended to be legally binding by virtue of the Circuit Court order which confers discretion on the agency which is not expressly limited in any way by the terms of the order. For that reason, if no other, the agency’s refusal to provide further access dated 27th January, 2016, is amenable to judicial review.”
85. This finding, quite clearly, was heavily influenced by his view of the Circuit Court’s seemingly improper delegation to the Agency of the sole responsibility for determining access and of its perceived abdication of the judicial function in so doing. It is moreover clear from his judgment that the learned judge considered that the sole reason given in the letter for declining an increase in access, namely, reliance on the views of three young children, was suspect, as was the Agency’s attempt to resile from that reason at hearing and to instead rely on additional matters not apparent on the face of the letter. However, Humphreys J.’s view of the letter was not shared by Heneghan J. at the substantive hearing. As above noted (para. 24,supra), the learned judge instead determined that “no decision is pronounced in the said letter which would render it liable to judicial review” (para. 16 of her judgment). However, short of giving a brief explanation of the content of the letter, no concrete reasons were given for this conclusion.
86. At the outset it is important to explain that this criticism of the Circuit Court’s alleged “impermissible delegation or abdication of the judicial function” (para. 20 of the judgment of Humphreys J.) is based on a misunderstanding of Parts III, IV and VI of the 1991 Act. In particular, such criticism fails to have regard to the provisions dealing with care orders, namely, sections 13 (“Emergency Care Order”), 17 (“Interim Care Order”) and 18 (“Care Order”), and access to children in care (section 37). When these measures are considered, it will be seen that the concerns expressed are not well founded.
87. Upon the making of an order under section 13, the District Judge, pursuant to subs (7)(a) thereof:
“… may, of his own motion or on the application of any person, give such directions (if any) as he thinks proper with respect to—
Where such an order is made, it should last for a period of eight days or such shorter period as might be specified in the order (section 13(2)).
88. Interim care orders under section 17 were originally to last for no more than eight days, though this was first extended to twenty-eight days (section 267 of the Children Act 2001) and now to twenty-nine days (section 1 of the Child Care (Amendment) Act 2013). Section 17(4) of the 1991 Act provides that where an interim care order is made, the court:
“… may order that any directions given under subsection (7) of section 13 may remain in force subject to such variations, if any, as he may see fit to make or the justice may give such directions in relation to any of the matters mentioned in the said subsection and the provisions of that section shall apply with any necessary modifications.”
As can be seen, upon the making of an emergency care order or an interim care order, the District Court Judge may make provision,inter alia, for access and may give such directions in that regard as are appropriate.
89. However, a different situation arises when a care order is made under section 18 of the Act, sometimes referred to as a “full care order”. Section 18(1) sets out the circumstances in which the District Court may make such an order in respect of a child upon an application by the CFA. A precondition to the making of such order is that (a) the child has been or is being assaulted, ill-treated, neglected or sexually abused, or (b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or (c) his or her health, development or welfare is likely to be avoidably impaired or neglected. Additionally, the Court must be satisfied that the child requires care or protection which he is unlikely to receive unless the court makes an order under the section. Where these conditions are satisfied, the court may make a care order in respect of the child. Subsection (2) of that section reads:
“A care order shall commit the child to the care of the [Child and Family Agency] for so long as he remains a child or for such shorter period as the court may determine and, in such case, the court may, of its own motion or on the application of any person, extend the operation of the order if the court is satisfied that grounds for the making of a care order continue to exist with respect to the child.”
Subsections 18(3) and 18(6) are also relevant and provide, respectively:
“18.—(3) Where a care order is in force, the [Child and Family Agency] shall—and shall have, in particular, the authority to—(i) decide the type of care to be provided for the child under section 36;
(ii) give consent to any necessary medical or psychiatric examination, treatment or assessment with respect to the child; and
(iii) give consent to the issue of a passport to the child, or to the provision of passport facilities for him, to enable him to travel abroad for a limited period.
…
“(6) Between the making of an application for a care order and its determination, the court, of its own motion or on the application of any person, may give such directions as it sees fit as to the care and custody of, or may make a supervision order in respect of, the child who is the subject of the application pending such determination, and any such direction or supervision order shall cease to have effect on the determination of the application.”
90. Accordingly, it can be seen that upon the making of a care order under section 18 of the 1991 Act, the CFA is in effect placed inloco parentisand all preceding orders of an interim or emergency nature, including all provisions thereof dealing with care, custody or access, cease to have any legal effect.
91. An important provision for present purposes, and one very much tied to the regime as described, is of course, section 37 of the Act, titled “Access to children in care”. Section 37(1) provides as follows:
“(1) Where a child is in the care of the [Child and Family Agency] whether by virtue of an order under Part III or IV or otherwise, the [Agency] shall, subject to the provisions of this Act, facilitate reasonable access to the child by his parents, any person acting inloco parentis, or any other person who, in the opinion of the [Agency], has abona fideinterest in the child and such access may include allowing the child to reside temporarily with any such person.”
Per section 37(2), any person who, following a request, is dissatisfied with what arrangements are in place or allowed by the CFA, may apply to the District Court to have these reassessed and, if necessary, altered or even replaced. On such application that court can make whatever order it thinks proper regarding access. This is an important safeguard in the statutory scheme, the significance of which is dealt with in greater detail at paras. 110-113,infra.
92. It is therefore by the interplay of these provisions that the Agency is statutorily entitled to make provision for and otherwise regulate access by third parties, including parents and siblings, to the child. As this is the statutory framework within which the District and Circuit Courts must operate, it follows that the question of delegation or abdication is simply not an issue. Had this been explained to Humphreys J., his decision on leave may very well have been different.
93. It should be noted that an issue which might arise on the making of a section 18 order is whether, as part of its terms, either the District Court, at first instance, or the Circuit Court, on appeal, has jurisdiction to include specific measures or provisions which either affect or influence access, as it should apply thereafter. This is quite a different matter to the issue above discussed, namely, that by virtue of the statutory scheme, as outlined, the exercise of future care is left for the CFA to regulate, subject to section 37. The point which I raise is whether the court making the order can specify certain requirements, by express condition, which may impact on what the CFA might otherwise decide. As the same was not argued, I simply raise this point but express no view on it.
94. Reverting to Issue Two, the question is what, then, are the determinative factors when assessing whether this letter contains a decision which could be the subject of a judicial review challenge? Broadly speaking, the parties appear to be on the same page as regards the general principles to apply. The appellant has referred the Court to the case ofRyanair v. Flynn[2000] 3 IR 240. There the issue was whether a report requested by the Minister for Enterprise, Trade and Employment, pursuant to section 38(2) of the Industrial Relations Act 1990, into an escalating dispute between SIPTU and Ryanair, and provided by industrial relations consultants, was amenable to judicial review. That report included,inter alia, a comparative study of pay and conditions of baggage handlers at Dublin airport. It made a number of findings of fact which contradicted assurances previously given by Ryanair in relation to the remuneration and benefits enjoyed by members of its staff in comparison with workers employed in similar positions by Ryanair’s main competitors, also at Dublin airport.
95. Ryanair sought judicial review of the report on a number of grounds and was granted leave to seek an order ofcertiorariin respect thereof, as well as declarations (i) that the report wasultra viresand (ii) that the respondents had failed to observe natural and constitutional justice. At the substantive hearing, having referred toMurtagh v. Board of Management of St. Emer’s National School[1991] 1 I.R. 482, Kearns J., as he then was, identified three requirements which had to be satisfied before the court can intervene by way of judicial review: i) there must be a public law dimension; ii) there must be a decision, act or determination; and iii) that decision, act or determination must affect some legally enforceable right of the applicant. Kearns J. went on to state that if the right is not a “legally enforceable right”, it must be a right so close to it as to be a probable, if not inevitable, next step that some legal right will in fact be infringed (at p. 264 of the report). His conclusion on the amenability of the report to review is in fact set out on the previous page, where he stated that:
“I am satisfied in the instant case that the matter raised before this court is not justiciable because there is no decision susceptible to being quashed in the sense thatno legal rights of the applicant are affectedby what is a mere fact-finding report. The inquiry team had an extremely limited function as was expressly recognised by the applicant’s solicitor by letter dated the 13th March, 1998. At the applicant’s own insistence, the inquiry could not attempt mediation or dispute resolution. It could not impose duties, penalties, liabilities or consequences of any sort.
Accordingly, it seems to me the application fails both because there is ‘no decision’ and secondly, even if there was, ‘no legal right of the applicant was thereby affected’.” (p. 263) (Emphasis added)
96. This decision must now be read in light of subsequent case law, which clarifies that if a report contains adverse findings affecting the good name of any person then that person may seek to quash it: see, for example,Maguire v. Ardagh[2002] 1 IR 385 at 669-670;de Roiste v. Judge-Advocate General[2005] 3 I.R. 494 at 512 andde Burca v. Wicklow County Council[2009] IEHC 54. In addition, Hogan and Morgan,Administrative Law in Ireland(4th Ed., 2010) at para. 16.14 puts it thus:
“The modern tendency, however, is to eschew a rigid classification of whether a determination is ‘binding’, ‘conclusive’ or whether the ‘legal rights’ of the citizen have been affected. The courts are apt toexamine whether the applicant has suffered a real or possible prejudiceand to see whether he has a sufficient interest in the matter.” (Emphasis added)
97. The CFA does not take issue with the test proposed by Ms. G, namely, whether the letter was intended to have “binding effect” or to “influence administrative action”. Even on that standard, however, they submit that the letter is not reviewable. Accordingly, I am satisfied that the appropriate manner in which to address this issue is to consider whether the letter affected any legal rights of Ms. G, or, alternatively, whether she has suffered a real or possible prejudice in consequence of its terms. Either way, the appellant can only succeed if the letter contains a “decision”, as legally understood in the present context, in the first place.
98. The surest insight into whether the letter amounts to a reviewable “decision” is to examine its express terms. Such an approach of course reduces the process of identifying a “decision” to a case-by-case exercise, but that is precisely what is demanded. Ms. Buckley, in a replying affidavit sworn as part of the judicial review proceedings, has explained her own view of the letter. If this is of any relevance to its justiciability, it must surely be slight, and certainly cannot be decisive. The Agency cannot put the letter beyond reach by explaining that it was notmeantto amount to, or contain, a decision, if in fact it does just that. Ascertaining whether or not it does is an objective question for the court, which, as stated, will require an analysis of its terms and also an awareness of the context in which it was written. The text of the letter is set out at para. 12,supra, in ease of the reader.
99. It is stated at the outset to be an acknowledgment of a complaint regarding access. This is perhaps a mischaracterisation of Ms. G’s own letter, which, while certainly containing a complaint, also went further and explicitly requested increased access, under threat of recourse to legal proceedings. However, this element of the appellant’s letter is largely overlooked or even side-stepped in Ms. Buckley’s response. Beyond stating that “I am aware that you would like increased access with your three children”, the Complaints Officer merely recites the existing position and explains why it is in place. Following a factual assertion regarding the social worker’s last visit to the children, the letter sets out that the current arrangements reflect the children’s wishes and that it is important to listen to the children’s views. In many respects Ms. Buckley appears to have evaded the actual request for an increase in access and thereby avoided making any decision on the issue. By its terms, the letter can more properly be described as an explanation of a decision previously made, rather than constituting a new or fresh decision in and of itself. This is so despite the fact that Ms. G manifestly was seeking a change in the access arrangements, rather than a restatement or explanation of them. Be that as it may be, and however unsatisfactory the response might have been from the appellant’s point of view, this is how I would characterise the reply.
100. If by a textural analysis of its terms the letter does not contain a “decision”, might it be possible to imply one? Perhaps, but such could not be at the expense of standing down its overall meaning as positively expressed. To do so here would be such an exercise. Accordingly, nothing in the text of the letter, or by implication, constitutes a “decision” made on behalf of the Agency. It amounted to no more than a recital of present arrangements and the basis for same being in place.
101. Moreover, I am satisfied that it was reasonable for the CFA to adopt this approach despite Ms. G’s letter having requested increased access. This very much ties in with the nature and effect of section 18 care orders, which, unlike any of the other short-term options available, are long-term in effect and duration. In reality, they are designed to further promote the stability of a child in need, so that at the end of the process the necessity for care will have been eliminated. A degree of continuity and an element of certainty are critical in this regard. This process, however, cannot be detached from an even greater aspiration, which, in the vast majority of cases, is the reestablishment of a family unit within which the welfare of that child can be sustained. Whilst the attainment of these objectives may give rise to stress in the process, nonetheless it must be realised that such aims are, in essence, complementary and not exclusive of one another.
102. It was submitted on behalf of the Agency that an unsuccessful applicant for judicial review should not be permitted to artificially create a new “decision”, susceptible to review, simply by submitting a written request to which the most likely response will be reliance on a decision previously made. Similarly, an applicant who has delayed in bringing judicial review cannot circumvent the time limits by seeking a fresh confirmation of a prior decision. Whatever may have been Ms. G’s motives in making the request, which I suspect were entirely driven by motherly affection, to find that the replying letter contained a “decision” would have just that effect.
103. Save for that piece of correspondence, it is not clear that anything had changed subsequent to the meeting of October, 2015, or even since the Circuit Court’s affirmation of the District Court order, such as to mandate a reassessment of access. Nothing in the appellant’s own letter to the Agency suggests any relevant circumstance had altered. Her dissatisfaction is understandable but it cannot be the case – and is not the case – that a dissatisfied parent can repeatedly set up a challenge by eliciting from the Agency a reaffirmation of existing access arrangements. Sometimes a fresh decision will be called for, but mere discontent with the existing position cannot of itself suffice to place on the Agency an obligation to revise or re-appraise that situation.
104. A further point raised by the appellant in support of her position requires to be dealt with. It was submitted on her behalf by way of oral argument that had the response contained in the letter of the 27th January been to increase, or decrease, the level of access, or otherwise modify or vary the current arrangements, then that surely would have amounted to a “decision” amenable to judicial review. Why, it was asked, should it be any different merely because the arrangement was left as it was?
105. At one level there is certainly a strong case to be made that had the Agency responded by, for example, reducing the present access, that very well might have been a clear example of a decision being made which had a prejudicial impact on Ms. G. Likewise if access had been raised, but subject to conditions which were unacceptable to her. Can it be extrapolated, therefore, that making no decision was itself a “decision” to maintain thestatus quo? If a letter adjusting access downwards would be amenable, why should a letter refusing to adjust it upwards be any different?
106. The answer lies partly in the context in which the letter was written, namely, in response to a direct request from the appellant. The relevance of this lies once more in the CFA’s point regarding the artificiality of calling on the Agency to make a formal decision despite there being no ostensible need to revisit the decision only recently made. Moreover, as stated,this letteras actually drafted simply does not appear to contain a decision of any nature. The Agency was called upon to make one, but it refrained from doing so, either deliberately or otherwise. The absence of a decision is not “a decision” when there was no legal obligation to make one in the first place. Whatever about hypothetical letters which could have increased or decreased access, or even left access the same in a situation where changed circumstances merited a re-evaluation of the arrangements, here there simply was no requirement on the Agency to make a fresh decision on access.
107. This is not to say that the CFA or any other State agency can avoid having to make a decision simply by acting under the pretence of not having been asked to do so. They cannot disregard or ignore a situation demanding a decision, for to do so would be a failure to fulfil their functions. The point is that on the facts of the case, there can have been no requirement for a fresh decision at the appellant’s behest in January, 2016. If there was a basis to demand a reassessment, and the Agency declined to do so, then that refusal or failure could of course be amenable to judicial review. Here, I cannot perceive of any reason why the CFA would be required to reach a fresh decision despite the original decision being reaffirmed as recently as three months previously, and where no change in circumstances had been brought to its attention.
108. One can readily imagine a situation whereby some aspect of the relationship between an individual and a State or public agency would be subject to periodic review. It may be, for example, that a certain scheme, programme or undertaking requires to be revisited or re-assessed every year, or re-evaluated at different stages of its operation. If the outcome of any such review had the effect of prejudicially affecting an individual, and the same was communicatedvialetter, it is entirely appreciable that such letter, or, more accurately, the decision therein contained, could be the subject of judicial review. This, however, is an entirely different situation from a State agency responding to what would in effect have been an applicant-generated requirement to issue a decision shortly after a comprehensive review of the existing situation had been carried out. No decision was required in response to the said letter in this case.
109. It is important to stress that nothing in this judgment should be read as stating that an official letter sent on behalf of a State agency in response to, for example, a request for increased access cannot ever be amenable to judicial review. Self-evidently such a responding lettercouldcontain a “decision” with a binding effect on legally enforceable rights, or could prejudice the recipient such that they would obtain a real benefit if the decision or determination therein was quashed. Undoubtedly the letter here, confirming as it did the existing arrangement as regards access to her children, must have been distressing for the appellant to receive. However, for the reasons above set out, the letter of the 27th January, 2016, does not contain any decision which would render it amenable to judicial review.
Alternative Remedy: section 37 of the 1991 Act
110. This judgment should not be read to suggest that Ms. G is without remedy, and that the current access arrangements must necessarily remain in place until her children reach adulthood. As explained previously, any person who is dissatisfied with the access arrangements made by the CFA may apply to the District Court, pursuant to section 37(2) of the 1991 Act, and that court may (a) make such order as it thinks proper regarding access to the child by that person, and (b) vary or discharge that order on the application of any person. Thus an aggrieved parent can seek an increase or other variation in access and on such application it is the court, and not the Agency, which is the arbiter of the outcome. Though section 37(2) does not impose any limits as to the frequency with which such applications may be made, one would suppose that a repeat application should not be made unless justified by some intervening act, event or circumstance, and in that regard I would observe that the passage of time may itself satisfy such a requirement.
111. In any event, the continued relevance of section 37(2) of the 1991 Act lies in the fact that Heneghan J., in refusing the reliefs sought, relied not only on theres judicata/abuse of process point but also on the fact that Ms. G had “elected to bypass the mechanisms available to her by way of application to the District Court”. Judicial review is a discretionary remedy. Thus where aprima faciecase has been made out – which, as the foregoing analysis illustrates, is not the case here in any event – the High Court may refuse to grant relief where a more appropriate remedy is available. Even if her decision could be impugned on other grounds, no argument has been advanced as to why the learned judge may have wrongly exercised her discretion insofar as she determined that a more appropriate remedy was available. It remains open to the appellant to make an application under that section and this, it seems to me, is the appropriate avenue by which to pursue the increased family access which Ms. G clearly wishes to have to her children. Indeed, it should be said that in the circumstances of this case, section 37 represents not only analternativeremedy, but a palpablysuperiorremedy.
112. The background circumstances of this tragic case immediately demonstrate the total unsuitability of judicial review as a means of resolving Ms. G’s complaint. That background, which is briefly referred to at para. 4,supra,is complicated, and difficulties have existed throughout most of her adult life. Unfortunately for the appellant she has had serious health problems, both physical and mental, for several years, with frequent acute episodes necessitating hospitalisation. On a number of such occasions she has been unable to care for her children and has had to place them into voluntary care. She has had no support from either father of her children or from her wider family; she therefore relies solely on the goodwill of neighbours and friends. As a result, the Agency and its predecessors have been involved with this family for many years. In making an application for an interim care order in November, 2013, allegations of abuse, in the form of excessive discipline and of neglect, were levelled against Ms. G. She denies being a strict disciplinarian and explains her rest periods as relating to her health.
113. Whilst no useful purpose would be served in further exploring these events, it should be noted that there is much disagreement between the appellant and the Agency in respect thereof. Whatever be the true position, what is required is careful scrutiny of her complaints by the court. The judge undertaking this task must be able to review all relevant circumstances so as to evaluate the current position and, critically, of course, the situation of the children. This can only be achieved by a full hearing, unrestricted by the legitimate and well-known restraints of the judicial review process. Such an option is readily available to Ms. G pursuant to section 37 of the 1991 Act. If for no reason other than this, Heneghan J. acted entirely within the bounds of her discretion in refusing the relief sought.
Further Matters
114. The 1991 Act, as amended and expanded, and other measures of like effect are of immense value to children who are in need of care. As the level of support will necessarily vary, the Act has a range of options so as to accommodate different situations. By far the most drastic move is a section 18 care order which, in effect, gives the Agency the same control over a child as if it were his or her parents. To that end it can make decisions of considerable importance in several spheres having instant, medium or long-term effect. These include decisions on the child’s medical wellbeing, education, development and social upbringing, who should become his or her primary carer, and what type of environment he or she should reside in. These decisions are very often made in the most formative period of a child’s life, and therefore have the potential for everlasting significance. Quite correctly, therefore, this widespread power carries with it a special responsibility not only to the child himself, but also to his parents, siblings and family.
115. Whilst fully acknowledging the critical role which the Agency plays in this regard, it cannot be overlooked but that the statutory jurisdiction which provides for its involvement is a reflection of the exceptional circumstances in which the State steps in where the parents, for whatever reason, have not been able to discharge their responsibilities. As previously pointed out, it must be a constant aspiration and high level priority for the CFA to help remove the need for intervention in the first place and to help recreate the circumstances in which that child can once again be reintegrated into the family unit, if that is possible. These considerations, and both the individual and collective rights which the child, his siblings and his parents, whether married or not, have under Article 40.3, Article 41, Article 42 and 42A of the Constitution, form the backdrop against which the CFA should regulate access under the powers given to it by virtue of section 37 of the 1991 Act.
116. In promoting the welfare of the child, which it is widely accepted can best be facilitated as part of the family unit, the Agency must have regard to the rights and duties of parents (section 3(2)(b) of the 1991 Act), retaining the best interests of the child as its primary consideration, of course. Particularly where a full care order is in place, the greater the restrictions on access by parents and members of the family, the greater justification there must be if the underlying aims are to be achieved and if violations of certain rights, both under the Constitution and the European Convention of Human Rights, are to be avoided (see, for example,Eriksson v. Sweden(1989) 12 E.H.R.R. 183 where the court noted at paragraph 58 that “the mutual enjoyment by parents and children of each other’s company constitute a fundamental element of family life”). It is therefore incumbent upon the Agency to keep these vital considerations in mind when discharging its function.
117. In making these observations, I am not in any way relating them to this particular case. I point them out as being part of the framework within which the reasonableness or otherwise of the access provided under section 37 is to be measured.
Issue Three: whether the Matter should be remitted to the High Court for a Full Rehearing
118. It follows from the aforegoing that the third issue does not arise. There has already been a substantive hearing before the High Court in October, 2016, and the appellant has not succeeded on either of her challenges to the resulting judgment. There is thus no basis to re-run the hearing on the substance of the judicial review application.
Conclusion
119. For the reasons set out above, the appeal will be dismissed.
