Mother loses appeal over five hours of annual access to three children in care

The Child and Family Agency (CFA) has given her supervised family access to all three together for a total of five hours a year, plus two hours a month to her youngest child.

Mr Justice William McKechnie, giving the five-judge Supreme Court’s judgment, said the circumstances of this "tragic" case showed the "total unsuitability" of judicial review as a means of resolving the access issues.

The mother can still have her access complaints addressed in District Court proceedings under the Child Care Act which, in this case, provided a "palpably superior" remedy to judicial review, he said.

The three children are aged under 13 and were taken into full care in 2014 following an interim care order of 2013. The mother’s five hours annual access consists of an hour at the time of each child's birthday, an hour at Christmas and an hour at Easter.

The CFA had, in a 2016 letter, said the access arrangements were in line with the wishes of the children, then aged from four to under 10.

Today, Mr Justice McKechnie rejected the woman’s appeal over the High Court’s refusal to judicially review her complaints.

Because she was previously refused leave for judicial review on similar grounds, the High Court correctly held her attempt to renew her application for leave for judicial review was an abuse of process, he ruled.

The High Court was also correct in finding a letter from a CFA complaints officer of January 2016 to the mother did not contain a “decision” amenable to judicial review. The letter, a reply to her seeking more access, stated the children had been consulted and in line with their wishes, the existing access arrangements were being maintained.

The judge said the CFA is statutorily entitled to provide for and otherwise regulate access to a child in its care. He also stressed the “special responsibility” of the CFA in relation to the constitutional rights of children, their parents, siblings and family.

Those rights, and considerations of the “high-level priority” of removing the need for intervention in the first place and helping recreate the circumstances for reintegrating a child into their family unit should form the backdrop against which the CFA regulates access.

Earlier, outlining the background, he noted the mother has other children who were also in care for a time but are now in the custody of their father.

Her youngest three, who have a different father, remain in care under full care orders made in 2014 arising from the mother's past history of psychiatric difficulties , the fact she had given up custody of the three in the past and took them out of the jurisdiction when a District Court supervision order was in place.

The judge said difficulties have existed throughout most of the woman’s adult life and she has had serious physical and mental health difficulties for several years, with frequent acute episodes requiring hospitalisation.

On some of those occasions, she was unable to care for her children and had to place them on voluntary care. She has had no support from either father of her children or her wider family and relies solely on the goodwill of neighbours and friends.

The care orders were sought for the three youngest amid allegations of abuse in the form of excessive disciple and neglect, he said. The mother denied being a strict disciplinarian and had said her rest periods related to her health.

While there was much disagreement between her and the CFA on matters, that was not an issue for the limited judicial review process and required careful scrutiny by a court under the Child Care Act 1991, he said.

After losing a Circuit Court appeal over the care orders, the mother was refused leave in 2015 for a High Court judicial review of the care order and access arrangements.

She later made a second application for leave for judicial review and got leave on certain grounds but the High Court ultimately refused the substantive judicial review.