Government warned against expansion of ex parte hearings in child care proceedings
Proposals to expand the use of ex parte hearings in child care proceedings could be challenged as incompatible with the Constitution, the government has been told.
The Department of Children, Equality, Disability, Integration and Youth has now published the responses to its 2020 consultation on reform of the Child Care Act 1991.
Though welcoming reform in principle, a number of submissions — from the Family Lawyers Association (FLA), the Bar Council and individual law firms — have raised concerns that specific proposals in the consultation document could conflict with the constitutional rights of parents.
The consultation paper notes that care order hearings can be obstructed by the “repeat non-attendance of any party” among other actions, and proposes that courts should be able to “hold hearings ex parte where circumstances warrant it”.
It also proposes that, where a voluntary care agreement is already in place, a care order could be made ex parte “where the court is satisfied that the relevant threshold is met and there is acceptable consent from the parents so that parents can avoid the court system if they wish and consent to care out of court”.
However, the Bar Council said it is “very concerned that an order such as a care order … could ever be granted on an ex parte basis”.
Its submission continues: “It is noted that one of the concerns raised in the consultation paper is ‘repeated non-attendance of any party’. It should be pointed out that non-attendance by a party is entirely separate and distinct from an application ex parte.
“An ex parte application is made without notice to the other side who is therefore unable to oppose the application. This is entirely different to circumstances where a party or parties fail to attend.
“If this occurs it is then a matter for the presiding judge to consider whether service is in order and if it is appropriate for the hearing to go ahead in the absence of a party or parties (which is not the same as a hearing ex parte).”
The FLA’s child care law reform sub-group submitted that the proposal for ex parte hearings is “hugely problematic”.
“The rights of parents and children under the Constitution and ECHR require that there is sufficient weight given to the rights of children to their parents, parents to their children and all parties to fair procedures in any determination affecting those rights,” it states.
“To interfere with these significant rights on an ex parte basis would likely give rise to significant issues and could be the subject of challenge.”
Dublin-based Mulligans Solicitors, which specialises in family and child care law, said the proposal “does not address the identified imbalance of power between parents and the [Child and Family Agency]”.
“In addition we are concerned that the proposal that care orders can be made ex parte would lead to a further under-representation of parents throughout the process,” the firm said.
Children’s minister Roderic O’Gorman has previously said the reforms will make the 1991 Act “more child-centred” and would take account of the constitutional changes made through the children’s rights referendum in 2015.