F.G. v The Child and Family Agency & Ors

Factual and Procedural Background

On 7th October, 2014, Judge Geoffrey Browne of the District Court made long-term care orders under the Child Care Act 1991 concerning the three children of the Applicant. The orders allowed access to the Applicant as determined by the Child and Family Agency. The Applicant appealed these orders to the Circuit Court, where Her Honour Judge Doirbhile Flanagan affirmed the District Court orders on 19th February, 2015.

The Applicant’s access to the children has been minimal, limited to four hours of supervised access per year, with no telephone or correspondence access and no contact with older siblings. Following receipt of what appeared to be incorrect legal advice regarding the limitation period for judicial review, the Applicant applied unsuccessfully for leave to seek certiorari of the Circuit Court decision. The Applicant later sought to increase access with the agency, which refused the request citing the children’s wishes as the sole reason. The Applicant now seeks judicial review of the care orders, the agency’s refusal letter dated 27th January, 2016, and related mandatory orders, with an extension of time requested for the challenge to the care orders.

Legal Issues Presented

1. Whether the previous judicial review application inhibits the grant of leave on the current application.
2. Whether an extension of time is required or appropriate for the judicial review application.
3. Whether there are arguable grounds to challenge the Circuit Court order, including alleged interference with family rights and non-disclosure of reports.
4. Whether the Circuit Court order improperly delegates or abdicates the judicial function of determining access to the agency.
5. Whether the agency’s refusal of additional access on 27th January, 2016, is amenable to judicial review and arguably invalid.
6. Whether the refusal of additional access is invalid based on reliance on the views of very young children.
7. Whether the refusal fails to give effect to the intention of the court orders regarding parenting supports and increasing access.
8. Whether the refusal of sibling access is arguably invalid.
9. Whether leave should be granted for mandatory orders related to access.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analysed the procedural history and facts, noting the initial care orders and their affirmation on appeal. It recognised that the Applicant’s previous judicial review application was refused due to incorrect legal advice on limitation periods, and that an extension of time was justified in the interests of justice given the circumstances and the Applicant’s unrepresented status at the prior hearing.

The court distinguished challenges to the District Court orders as inappropriate since the Circuit Court had affirmed them, focusing the challenge on the Circuit Court order. It found that the agency’s discretion to determine access, as left by the Circuit Court order, raised a jurisdictional issue potentially amounting to impermissible delegation or abdication of judicial function.

The agency’s refusal of increased access, based solely on the expressed wishes of very young children, was found to be legally arguable as improper. The court noted the agency’s later attempt to rely on social workers’ opinions, which were not communicated in the refusal letter, raising issues of procedural fairness and integrity in the provision of reasons by public bodies.

The court also considered that the agency may have failed to implement the court’s intention to increase access over time through parenting supports. The absence of sibling access raised further arguable concerns regarding the rights of the children and the Applicant.

In relation to pleadings, the court emphasised the need to assist lay litigants by allowing amendments and the addition of grounds, including reliance on the European Convention on Human Rights, particularly Article 8, to properly frame the Applicant’s complaints.

Overall, the court concluded that there were sufficient arguable grounds for judicial review and that the extension of time was warranted. It underscored that the agency’s letter refusing increased access was amenable to review and that the manner of access provision raised significant legal questions.

Holding and Implications

The court’s final decision was to GRANT LEAVE for judicial review subject to conditions and amendments. Specifically, the court:

• Extended time for the application up to the date it was made.
• Struck out certain respondents as inappropriate.
• Granted liberty to the Applicant to amend her statement of grounds to remove challenges to the District Court orders and reliance on the UN Convention on the Rights of the Child, and to add grounds including improper delegation, failure to implement parenting supports, wrongful manner of access, ECHR Article 8 rights, unlawfulness of the agency’s refusal letter, prohibition on discussing access with children, and failure to afford sibling access.
• Allowed the Applicant to pursue mandatory orders limited to reconsideration of access rather than specifying access details, reflecting the unsuitability of judicial review for merits determination.
• Reserved costs and set procedural directions for filing amended pleadings and notices.

The decision directly affects the parties by permitting the Applicant to challenge the Circuit Court order and agency decisions with an extended time frame and refined grounds. No new binding precedent was established; rather, the ruling applies established principles on extension of time, judicial review of administrative decisions, and assistance to lay litigants within the specific factual context.