21 October 2014

The Court of Appeal today dismissed an appeal against a judge’s decision to grant a health Trust’s application to move a 13 year old girl to a facility for seriously troubled children in the Republic of Ireland as there is no equivalent service in Northern Ireland.

On 16 September 2014, Mr Justice O’Hara ruled that “S” should be removed from her mother “M” and sent to a specialist centre in Co Dublin as the teenager was deemed to require “urgent intervention”. The mother, who shares parental responsibility with the Trust, and the child, had refused consent to “live outside Northern Ireland” at the centre in Co Dublin in accordance with Article 33 of the Children (NI) Order 1995 (“the 1995 Order”). S’s father, who does not have parental responsibility and who has not been involved in S’s life since she was one year old, had consented to the child living in Co Dublin.

The court had heard that S was being home tutored by her mother. They live in “very limited circumstances with a spartan existence without luxuries or treats”. An educational psychologist identified notable gaps in S’s learning, social and emotional development and said she lived an isolated life. When social workers visited in December 2013 they had to borrow a torch as there were no overhead lights upstairs in their home. S slept on a thin foam mattress on the floor. The court was told of a number of incidents illustrating that S was completely out of control, both M and S appeared to be unwashed and smelly, and there were reports by neighbours of S screaming. Following an urgent assessment on 28 February 2014, S was admitted to an inpatient adolescent mental health unit. M and S were subsequently transferred to a family centre on an emergency basis on 3 March 2014. They have continued to live there until an alternative placement can be found. The placement proposed by the Trust is a specialised unit in Co Dublin for seriously troubled children.

The mother M appealed against Mr Justice O’Hara’s decision on the grounds that the judge had:

  • Erred in finding that S did not have “sufficient understanding” under Article 33(4) of the 1995 Order;
  • Wrongly found that M was unreasonably withholding her consent pursuant to Article 33(3)(c) of the 1995 Order; and
  • Made a ruling which was incompatible with Article 8 of the ECHR.

The Court of Appeal referred to the evidence given by medical experts to support the view that only the specialist treatment in Co Dublin can provide the level of intensive care which is in the best interests of S. All of the experts agreed that M and S need to be separated and there is no unit in Northern Ireland which can provide that level of specialised intervention.

Counsel for M submitted that S had never been asked why she was not consenting to the placement in Co Dublin and that the judge had failed to analyse why M was withholding her consent. He argued that it was reasonable to argue that M did not wish to be separated from her daughter but that this possibility was not explored. Mr Justice O’Hara in his judgment had concluded that while S could be articulate and knowledgeable up to a point, she did not have sufficient understanding of the issues in order to give or withhold consent. He said she appeared to have no insight into her problem so that she could not and did not understand that the benefits of the Trust’s proposal far outweighed the risk of any additional trauma being caused to her by separation from her mother. Mr Justice O’Hara also concluded that M was being entirely unreasonable and in his view any reasonable parent in M’s position would have welcomed the Trust’s intervention and support and would have co-operated with the Trust.

Lord Justice Gillen, delivering the Court of Appeal’s judgment, said he was satisfied that the proposed arrangements for S constituted “living” arrangements and therefore came within the scope of Article 33 of the 1995 Order. He noted, however, that the Trust should be cautious in future in seeking to invoke Article 33 for arrangements which would merely involve very short hospital stays or medical treatment outside Northern Ireland.

Lord Justice Gillen noted that in this case no suggestion had been made to Mr Justice O’Hara or to the Court of Appeal that they should speak to S directly. She had written a letter to Mr Justice O’Hara in which she stressed the importance of her having a solicitor to express her views in court as she felt the Guardian ad Litem was not doing this. Lord Justice Gillen said there may be instances, albeit probably rare, where a court will have to determine whether a child should have both a Guardian ad Litem and a lawyer to represent him/her but that the Court in this instance was satisfied that the approach adopted by the trial judge furnished him with a true and accurate picture of the views of the child.

The Court of Appeal held that this was not a case where it was necessary for the judge to have interviewed the child or for her to have a solicitor representing her beyond the Guardian ad Litem for the following reasons:

  • The child was fixated on there being only one possible outcome and she would not entertain discussion of any alternatives: “A balanced informed view was clearly outside her capacity”;
  • She had refused to engage with or speak to experts or social workers once she perceived they were not adopting her views;
  • The expert psychologist concluded that S did not present with capacity to instruct a solicitor;
  • The trial judge “painstakingly” evaluated the reports of the various experts and heard the evidence of social workers, mental health nurses and M;
  • S was represented by the Guardian ad Litem.

Lord Justice Gillen concluded that the Court was satisfied that S had had a proper opportunity to voice her views and to indicate that she was not consenting to living in Co Dublin. He said that the trial judge had been afforded ample opportunity to make an assessment under Article 33(4) of the 1995 Order and there had therefore been no procedural unfairness.

Counsel for M had submitted that the trial judge had erred in finding that S had withheld her consent. Lord Justice Gillen stated that in order to have a sufficient understating of the nature of her consent which she is being asked to give, a child must have the capacity to understand the context in which she is withholding her consent. The evidence presented to the court was that S was unable to weigh up the options, was unwilling to even think about choices, and had no sense of the potential benefits of the proposed treatment: “This all stems from the fact that she is fixated on there being only one possible outcome namely her going home and the Trust withdrawing and thus she refuses to entertain the discussion of any alternatives”. The Court of Appeal concluded that Mr Justice O’Hara correctly concluded that S did not have sufficient understanding to give or withhold her consent in the circumstances of this case and that the evidence availed of no other conceivable conclusion.

The Court of Appeal then considered the refusal of consent by M. Lord Justice Gillen said the court was faced with the difficulty of applying an objective standard of reasonableness, looking at the circumstances of the actual parent but supposing this person to be endowed with a mind and temperament capable of making reasonable decisions. He said the Court was satisfied that the trial judge came to the only plausible conclusion namely that no reasonable parent would have refused to consent to the current application. M had admitted to a psychologist that she had “created a monster”, that S hit her on more than one occasion and that she was unwilling or unable to control or even influence S’s behaviour which is extreme and hysterical:

“It is inconceivable that any reasonable parent in M’s situation would not have welcomed the Trust’s intervention and support and have co-operated with the Trust to turn this situation around. There is no doubt that M displayed a sedulous devotion to this child. However the grim truth is that she lives in a world where the boundaries between fact and fiction are blurred and where she is unwilling or unable to understand, control or even influence her child’s behaviour. Any sense of being in a hurry to resolve the child’s problems is absent. Only separation and expert treatment can secure the welfare of this child in the future and no reasonable parent would withhold consent to that step.”

The Court of Appeal then considered the submission that there had been a breach of Article 8 of the ECHR. Lord Justice Gillen said that once the Court had determined that the powers under the 1995 Order had been lawfully exercised, it would inevitably conclude that the exercise of the power to approve the arrangement was lawful and proportionate and that the Convention rights of S or M had not been breached.