High Court of Ireland Decisions

1. I have heard these two cases together and, although the background facts in each case differ, the point of principle at issue is the same and therefore I propose only to deal with the facts in the first case. I will refer to the child in that case throughout as CK.

2. The first and second Notice Parties are the parents of CK, who co-habited for some time, but were not married and are now living apart. I do not think I am concerned with the particular facts which gave rise to the application to have CK taken into care, as the issue in this case is an issue of jurisdiction and of interpretation of the Child Care Act, 1991.

3. On 14th October, 1994 a summons was issued in the District Court on behalf of the Applicants pursuant to Section 24 of the Children's Act, 1908 seeking to have CK committed to the care of the Applicants. For some reason which is not clear to me the hearing of this summons did not come before the District Court until 15th May, 1996, but there followed a very full hearing on the facts of the case before the Respondent over a number of days between 15th May, 1996 and 6th December, 1996.

4. On 17th December, 1996 the Respondent made an order committing CK to the care of the Applicant and adjourned the matter for judgment at a later date. On 26th March, 1997 the Respondent delivered a twelve page judgment dealing extensively with the history of CK and his relationship with the first and second Notice Parties, and gave certain directions which were incorporated in his order of that date which I think I ought to quote in full to indicate the nature of the jurisdiction undertaken by the Respondent. The relevant portion of the order reads:-

5. In the second case an order was also made directing the Applicant to prepare a full Care Plan within three months and to submit it to Dr Moran, although there were not such stringent conditions attached to the order in that case as there were in the case of CK.

6. The issue in this case is very simple, namely whether the Respondent acted intra vires in giving the directions set out in his order of 26th March, 1997. This can be reduced to the even more basic issue as to whether under the Child Care Act, 1991 the District Court can retain or impose some form of control or conditions with regard to the care of a child which restrict the operation of the Applicant after a child care order has been made. I will deal in more detail subsequently with the arguments put forward on behalf of both parties.

7. As the determination of the issue depends primarily on the interpretation of the Child Care Act, 1991, and both parties have relied on different provisions under the Act, I think it advisable to quote or refer to all provision of the Act which are considered by either of the parties to have some relevance. These are as follows:-

8. Section 13, which it is not necessary to quote, provides for the making of emergency Care Orders by the District Court for limited periods, and that the District Court may give directions on certain matter when making such orders.

9. Section 17 similarly provides for interim Care Orders to be made by the District Court for limited periods, and again provides for directions to be given by the Court when making such orders.

10. Section 18 deals with Care Orders and reads as follows:-

11. Section 19 provides for the making of a supervision order by the District Court authorising a Health Board to visit a child on periodic occasions to satisfy itself as to the welfare of the child. Subsection 4 provides:-

12. The further relevant sections are:-

13. The Applicant argues that the scheme of the Act is very clear, in that it gives the District Court power and authority to give directions with regard to the welfare of a child in emergency situations or interim situations under Sections 13 and 17, but that once a permanent Care Order has been made under Section 18, the child is then committed to the care of the Health Board and the powers of the Court under the Act are spent. The Applicant points in particular to the wording of Section 18(2) and (3) and Section 36. Furthermore, the Applicant points to the various regulations relating to the placing of children as set out in Statutory Instruments 259/95, 260/95 and 261/95, which are commonly known as the Child Care Regulations 1995, and which provide that where a child is placed in residential care, foster care or care of relatives, a Care Plan must be prepared by the Health Board, thereby emphasising its jurisdiction over the child. The Applicant also argues that the practical view should be taken in the interpretation of the Act, in that administratively there could be serious problems caused if more than one body is responsible for the detailed and day to day welfare of the child once the child is in care.

14. The Notice Parties' place particular reliance on Sections 24 and 47 of the Act as giving the ultimate responsibility for a child to the Court. They also point to the constitutional rights of parents and children referred to in Section 24 and argue that the protection of these rights is clearly a matter for the Courts. In addition, they say that Section 22(b) implies powers in the District Court to impose conditions and directions, and that in general the scheme of the Act is not to give ultimate control to the Health Board, but to retain ultimate control in the hands of the District Court. Finally, they argue that the child has constitutional rights, as indeed have his parents, and that the intention of the Act is that the securing of these rights should be in the hands of the Court rather than of a Health Board.

15. The Applicant has cited a number of English cases which held that under United Kingdom legislation the Courts did not have any power to review the exercise of powers of a Local Authority under a Care Order, and in effect decided that once a Care Order has been made, the entire responsibility for the child passed to the Local Authority, subject to the ultimate power to take the child into wardship. These cases are not of great assistance to me, as they relate to United Kingdom legislation which, while the basic administration of child care set up under such legislation is very similar to that in this jurisdiction, nevertheless it operates under different statutory provisions. I have to interpret the statutes of our jurisdiction and must do so in the light of our Constitution.

16. The first point I would make is that Article 40 of the Constitution provides:-

17. In interpreting a statute the Court must bear in mind this constitutional guarantee, and should interpret a statute in accordance with the Constitution and on the assumption that it complies with the Constitution. It is the function of the Courts, and not of local authorities or health boards, to ensure that the constitutional guarantees given to an individual are upheld. Therefore, where the welfare of a citizen, and in particular of a child who is in need, is concerned, there would have to be a very clear delegation of powers if the obligation is to be imposed upon somebody other than the Courts.

18. In any event, there are two particular provisions of the Act which satisfy me that the Respondent was entitled to give the directions which he purported to give in this case, and indeed is entitled to enforce those directions.

19. Section 24, which is the general provision giving jurisdiction to the Court, clearly provides that the Court shall have regard to the welfare of the child as the first and paramount consideration. This is not qualified in any way, and seems to me to place an obligation on the Court in dealing with proceedings under the Act which cannot be passed on or delegated to a health board, notwithstanding the fact that a Health Board is under the same strictures pursuant to Section 3(2). This latter provision simply confirms that a Health Board, in carrying out its functions, must also have regard primarily to the welfare of the child.

20. Quite apart from the general provision, Section 47 of the Act gives an extremely wide jurisdiction to the District Court. Unlike Section 24, this is not limited to cases where there are proceedings before the Court, but rather to situations where the child is already in the care of a health board. This jurisdiction may be exercised by the Court on its own motion or on the application of any person, which of course would include the Notice Parties in this case. A somewhat farcical situation therefore, could arise if I declare that the Respondent had no power to impose these directions, in that the Notice Parties could apply tomorrow under Section 47 to the Respondent to make exactly the same directions. It is not credible that the Respondent should not be entitled to impose directions when making the Care Order, but would be entitled to do so on a new application the next day.

21. In my view Section 47 is an all embracing and wide ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court. It should be noted that it is contained in part of the Act dealing with "Children in the care of Health Boards", and is not qualified in any way. I think the only reasonable interpretation of Section 47 is that it is intended to give the overall control of children in care to the District Court. This is not to say that the District Court should interfere in all day to day decisions made by a health board, but rather that whenever any matters of concern are brought to the attention of the District Court, which could reasonably be considered adversely to affect the welfare of the child, and only in such circumstances, should the District Court interfere. Having read the decision of the Respondent in both the cases before me, I am quite satisfied that he had ample grounds upon which to intervene or impose conditions on the making of Care Order, although that is not strictly the question before me.

22. I have quoted a number of provisions of the Act in the earlier part of this Judgment with deference to the careful arguments put forward by Miss Clissman S.C. on behalf of the Applicants. However, I can find nothing in these sections which is inconsistent with the interpretations which I have put on Sections 24 and 47 of the Act.

23. Accordingly, I will refuse the relief claimed in this application.