Child Law Update

Guardian ad litem successful in joining four children to Judicial Review Proceedings of their own care order

Case: L.N. -v- Judge Daly & Ors [2016] IEHC 140

Date of Judgment: 16/03/2016, McDermott J.

This case involved a successful application brought by a person (“O.R.”) before the High Court to be a joined as Notice Party, as guardian ad litem to four sibling children, in respect of judicial review proceedings of a District Court ruling (dated 16th January, 2015) to grant full care orders over each child. To contextualise matters, the function of the guardian ad litem (Guardian at Law) is to convey the child’s wishes and views to the Court and to express a professional view as to what is in the child’s welfare (HSE v. S.O. and anor. [2013] IEDC 19).

FACTS

O.R. a qualified social worker, was originally appointed the guardian ad litem of the four children pursuant to orders made by the Dublin Metropolitan District Court from November 2012 – August 2013, under section 26 of the Childcare Act 1991. She remained involved in the District Court care proceedings for all four children. The full care hearing ran over seven days during 24th November 2014 – 13th January 2015.

After a consideration of the body of adduced evidence, (including, for example, the parent’s ongoing and pervasive drug addictions, the children’s exposure to this, and the parents relatively little progress in dealing with these addictions) District Court Judge Daly felt it was proportionate in order to maintain the welfare of the children to make a full care order in respect of each child, until they reached the age of majority. The parents also attended the hearing, and submitted that any care order made until each child reached their age of majority was disproportionate. It was recognised that the views and interests of the children were said to be represented in the proceedings by the guardian ad litem.

Additionally, Judge Daly, directed that the case would be listed for a full review of the children’s progress in care on the 29th January, 2016. It was also recommended that if the parents demonstrated a sufficient level of progress on that date, the matter could be listed for a full review of the children’s care arrangements two years after the review date. The guardian ad litem was to be “re-appointed” ten weeks in advance of any review date.

HIGH COURT PROCEEDINGS

The applicant was granted leave to apply for judicial review on the 29th June, 2015 to seek an order for certiorari quashing the decision of the District Court and a declaration that the granting of full care orders failed to accurately apply the appropriate test for making a proportionate order.

In the High Court, it was submitted by the applicant that the care orders went further than was strictly necessary to safeguard the welfare of the children. The applicant felt that a Court review of the children’s circumstances should be conducted ‘after twelve months’ with the guardian ad litem re-appointed eight months prior to allow adequate time to review the circumstances of the children. It was contended by the respondents that the guardian ad litem was appointed for the purposes of the District Court proceedings “only”. Accordingly, her role did not extend to the High Court proceedings as it was limited to that defined under s.26 of the Childcare Act 1991.

The Court recognised the difficulty faced by the applicant, after being engaged in the District Court proceedings involving each child, she was not considered to be a party to those proceedings. As a result, the order granting leave did not name her as a respondent.

Ruling

McDermott J., observed that, quite apart from section 26 of Childcare Act 1991, the question of whether the applicant ought to be joined as a notice party is governed by Order 84 of the Rules of the Superior Courts, which vested an inherent jurisdiction in the Court to add a party to proceedings if satisfied that the party had a “vital interest in the outcome of the matter” or is “vitally interested in the outcome of the proceedings” or would be “very clearly affected by the result”, (O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39).

In further rejecting the respondent’s argument over the guardians function, McDermott J., distinguished the roles of the guardian ad litem in District Court proceedings from that of High Court proceedings. He found that for the purposes of District Court proceedings a guardian ad litem appointed under section 26, is not considered to be a “party” to the proceedings (HSE v. S.O. and anor. [2013] IEDC 19), but has an important, if limited role, in assisting the Court in its enquiry as to the best interests of the child.

The Judge found the role of the guardian ad litem in respect of High Court proceedings to be more “proactive” (informed by McMenamin J. in The Health Service Executive v. D.K. (a minor) [2007] IEHC) in that in addition to reporting to the court regarding the child’s care, it could also act as the child’s representative and thereby communicate to the Court the child’s views.

In making his final determination, McDermott J., observed that the central issue to be addressed at the hearing of the judicial review application was whether the learned judge correctly applied and had regard to the law in respect of proportionality when making a determination that the four children should remain in care until they reach the age of majority.

Such a review, would unavoidably require a consideration of how the issues concerning custody and access to the four children were determined. It is impossible, McDermott J. said not to view such a development as one in which each child has a “vital interest”. He was therefore, satisfied that the Court had jurisdiction to direct that a guardian ad litem be appointed to the children to ensure that they are represented in respect of an issue which is so vital to their future lives and welfare.

As the legal issues under consideration in the proceedings directly related to the best interests and welfare of children. The judge was so satisfied that the four children should be joined as Notice Parties to the proceedings and that O.R. should be appointed as their guardian ad litem for that purpose.

COMMENTARY

This case affirms that the High Court has stated that children are to have voice through the office of the guardian ad litem in judicial reviews of their own care orders from the lower courts where it can be shown that the outcome of such proceedings could materially affect their future welfare and best interests.