A.F, (a minor) v Child and Family Agency & ors

Factual and Procedural Background

The Applicant, a minor born in 2003, has been under the care of the Child and Family Agency (C.F.A.) since December 18, 2017, pursuant to an interim Care Order under the Child Care Act 1991. Due to a deterioration in behaviour from September 2018, the National Special Care Committee of the C.F.A. determined on December 10, 2018, that the Applicant required special care, as his behaviour posed a real and substantial risk to his wellbeing. However, the Service Director of the C.F.A. refused to make a formal determination under section 23F(7) due to the unavailability of secure placements, prompting judicial review proceedings.

Following a hearing during the 2018/2019 Christmas vacation, the Court found the refusal unlawful and ordered the Service Director to make a formal determination, which was done on February 6, 2019. Despite this, the C.F.A. did not apply to the High Court for a Special Care Order as required under section 23F(8), citing lack of available placements. Judicial review proceedings were initiated challenging this failure. Leave to proceed was granted on February 25, 2019.

Subsequently, the National Special Care Committee decided on March 5, 2019, that the Applicant no longer required special care, a decision subject to separate judicial review proceedings. The Court was informed that the current proceedings would proceed only on the issue of the interpretation and effect of section 23F(8).

Legal Issues Presented

1. Whether the decision and/or policy of the C.F.A. to defer making an application for a Special Care Order under section 23F(8) until a placement is available, despite having determined that the Applicant requires special care, is lawful.
2. Whether the proceedings are moot given subsequent developments regarding the Applicant’s status and behaviour.
3. The proper interpretation and application of section 23F(8) of the Child Care Act 1991 as amended, particularly whether the obligation to apply to the High Court is immediate or may be delayed pending availability of placement and prioritisation.

Arguments of the Parties

Applicant's Arguments

• The mandatory wording of section 23F(8) requires the C.F.A. to apply to the High Court for a Special Care Order promptly after a formal determination that special care is required.
• The C.F.A.’s refusal to apply until a placement is available is unlawful, especially given the Applicant was assessed at ‘immediate’ risk.
• Despite the current reduction in risk, clarification of the true meaning and effect of section 23F(8) is necessary for the Applicant and similarly situated children.

Respondent's Arguments (Child and Family Agency)

• While acknowledging the mandatory obligation under section 23F(8), the C.F.A. argues that the application to the High Court must be made “as soon as practicable,” allowing for practical constraints such as unavailability of secure placements and staffing shortages.
• The C.F.A. contends that the obligation to apply is external and distinct from internal determinations under subsections 1 to 7, thus justifying a different interpretation.
• The C.F.A. further argues that the proceedings are moot due to the March 5, 2019 decision that the Applicant no longer requires special care and the diminished risk behaviour reported.

Second Named Notice Party's Arguments

• Refers to Supreme Court precedent supporting the exercise of discretion to hear moot appeals where issues are capable of repetition and have wider implications.
• Argues that the interpretation of section 23F(8) has importance beyond the Applicant’s case and should be determined in the interests of justice.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
SMcG. & JC v. Child and Family Agency [2017] 1 I.R. 1	Discretion to hear moot appeals where issues are capable of repetition and have ongoing consequences.	Supported the Court’s decision to hear the declaratory relief despite mootness arguments.
Murphy v. Roche [1987] I.R. 106	Requirement of a live controversy for justiciability.	Referenced to affirm that courts avoid deciding hypothetical or moot points.
Borowski v. Canada [1989] 1 S.C.R. 342	Mootness doctrine and exceptions for cases capable of repetition.	Quoted to emphasize need for live controversy and discretionary exceptions.
G. v. Collins [2005] 1 I.L.R.M. 1	Adversarial system requires parties with a stake; courts avoid hypothetical rulings.	Used to underscore the principle against deciding moot issues.
Lofinmakin v. Minister for Justice [2013] 4 I.R. 274	Mootness defined by absence of practical impact on live controversy.	Supported the respondent’s mootness argument but court exercised discretion otherwise.
W. v. Health Service Executive [2014] I.E.S.C. 8	Adversarial principle and mootness.	Referenced in mootness analysis.
AX v. The Mental Health Tribunal [2014] IEHC 592	Adversarial nature of proceedings and mootness.	Referenced in mootness context.
McDonagh v. Governor of Mountjoy Prison [2015] I.E.C.A. 71	Adversarial principle and mootness.	Referenced in mootness context.
O'Sullivan v. The Sea Fisheries Protection Authority & Ors [2017] 3 I.R. 751	Mootness doctrine and requirement of live controversy.	Quoted to explain the application of mootness doctrine and exceptions.
Irwin v. Deasy [2010] I.E.S.C. 35	Mootness doctrine restrains advisory opinions absent live controversy.	Quoted in support of mootness principles.

Court's Reasoning and Analysis

The Court began by addressing the question of mootness, acknowledging the C.F.A.’s argument that the proceedings were moot due to the March 5, 2019 decision and the Applicant’s improved behaviour. However, relying on established Supreme Court precedent, the Court exercised its discretion to hear the case because the issue raised—interpretation of section 23F(8)—is capable of repetition and has broader implications beyond the Applicant’s circumstances.

Turning to the interpretation of section 23F(8), the Court noted that the subsection is framed in mandatory terms, requiring the C.F.A. to apply to the High Court for a Special Care Order where a determination has been made that the child requires special care. The C.F.A. argued for a purposive interpretation allowing delay until a placement is available and the child is prioritised, distinguishing subsection 8 from the internal steps under subsections 1 to 7.

The Court rejected this interpretation as inconsistent with the plain and ordinary meaning of the statute, the purpose of the Child Care Act 1991, and the statutory scheme as a whole. It held that the obligation to apply to the High Court must be fulfilled as soon as practicable, with any delay attributable only to procedural matters related to the application process itself, not external factors such as placement availability or prioritisation.

The Court emphasized that permitting the C.F.A. to defer the application indefinitely until a placement is available would lead to an absurdity and undermine the statutory purpose of care and protection of children. The external nature of the obligation under subsection 8 does not justify a different interpretation.

Accordingly, the policy of the C.F.A. not to apply to the Court promptly after fulfilling subsections 1 to 7, without explanation or timescale, was found to be unlawful.

Holding and Implications

The Court held that the C.F.A.'s policy and conduct in deferring the application to the High Court under section 23F(8) of the Child Care Act 1991 until a placement is available is unlawful.

The direct effect of this decision is to mandate that the C.F.A. must apply to the High Court for a Special Care Order as soon as practicable once a formal determination that special care is required has been made, regardless of placement availability or prioritisation. No new precedent beyond this statutory interpretation and application was established. The ruling ensures that statutory protections for children requiring special care are given effect without undue delay.