THE HIGH COURT
			2000 No. 1640 SS
IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
BETWEEN 
THE WESTERN HEALTH BOARD
			APPLICANT 
AND 
K. M.
			RESPONDENT
JUDGMENT of Finnegan J. delivered the 14th day of March, 2001.
	This matter comes before me by way of a consultative case stated pursuant to Section 52 (1) of the Courts (Supplemental Provisions) Act, 1961.  The proceeding giving rise to the consultative case stated is an application to the District Court pursuant to the Child Care Act, 1991 Section 47.  The Child Care Act, 1991 Section 47 provides as follows -
	“47.  where a child is in the care of a health board, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order”

	The application of the Applicant to the District Court was for a direction that T. M. a child of the Respondent K. M. be placed in care with a cousin of K. M. in the United Kingdom.  Arising out of legal argument in the District Court the following questions are submitted for the determination of the High Court -
	In relation to a child who is in the care of a health board pursuant to Section 18 of the Child Care Act, 1991 -
(i)	Can the health board lawfully place the child with relatives or foster parents outside the State pursuant to the provisions of Section 36 of the said Act?
(ii)	Can the District Court lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the said Act?
(iii)	If the answer to question (i) and/or question (ii) above is yes, can the period for which the child is so placed be limited?
	
	The Child Care Act, 1991 Section 36 provides as follows -
	“36(1)  where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests -
(a)	by placing him with a foster parent, or 
(b)	by placing him in residential care (whether in a children's residential centre registered under part viii, in a residential home maintained by a     health board or in a school or other suitable place of residence), or 
(c)	in the case of a child who may be eligible for adoption under the Adoption Acts, 1952 to 1988 by placing him with a suitable person with a view to his adoption, or 
(d)	by making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper.
(1)	In this Act “foster parent” means a person other than a relative of a child who is taking care of the child on behalf of the health board in accordance with regulations made under Section 39 and “foster care” should be construed accordingly
(2)	Nothing in this Section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability.”
	
	It is important for the purpose of construing Section 36 of the Act to read the Section in the context of the Act as a whole.  The Act in Section 3 sets out the functions of health boards in relation to the Act - “to promote the welfare of children in its area who are not receiving adequate care and protection.” In the performance of its function a health board having regard to the rights and duties of parents shall have regard to the welfare of the child as the first and paramount consideration and have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.  
	The Act in part iv deals with care proceedings and in Section 18 deals with care orders:  a care order was made in respect of the child whose welfare is in issue here on the 22nd June, 1997.  Section 18 (3) provides as follows -
	“18(3) where a care order is in force, the health board shall -
(a)	have the like control over the child as if it were his parent; and
(b)	do what is reasonable (subject to the provisions of this Act) in all the circumstances of the case for the purpose of safeguarding or promoting the child's health, development or welfare;
and shall have, in particular, the authority to -
(i)	decide the type of care to be provided for the child under Section 36;
(ii)	give consent to any necessary medical or psychiatric examination, treatment or assessment with respect to the child; and
(iii)	give consent to the issue of a passport to the child, or to the provision of passport facilities for him, to enable him to travel abroad for a limited period.”

	A care order pursuant to Section 18 commits a child to the care of the health board and gives the health board the like control over the child as if it were his parent.  Section 18 (3) having set out in the widest of terms the authorities of the health board in relation to a child the subject matter of a care order sets out three particular authorities the third of which is relevant here - the authority to give consent to the issue of a passport to the child, or to the provision of passport facilities for him, to enable him to travel abroad for a limited period.  It seems to me that Section 36 must be read in conjunction with this provision and construed so as to be consistent with it: Section 36 should be construed so that a child in respect of whom a care order is in force is abroad for a limited period only.  It seems to me that a limited period will most likely be referable to a trip abroad beneficial to the child such as a holiday or attendance for medical examination or treatment where that is necessary: such a child could not be sent abroad where the effect of so doing would be an abandonment by a health board of the control which a care order vests in it.
	I am fortified in this view by the inclusion in Section 36 (1) of the phrase “subject to its control and supervision”.  Whatever arrangements are made by a health board for the welfare of a child in its care the health board is obliged pursuant to Section 36 (1) to maintain control and supervision.  This is consistent it seems to me with each of the ways in which a  health board is authorised by Section 36 to provide care.  Placing a child with a foster parent requires a health board to continue to exercise control and supervision: detailed provisions regulating the same may be made pursuant to Section 39.  Residential care may be provided in a children's residential centre registered under the Act: of necessity, having regard to the provisions of Part VIII of the Act, such a children's residential centre must be within the State.  Alternatively, care may be provided in a residential home maintained by the health board: Section 38 of the Act envisages regulation of the same and from this I am satisfied that such a residential home must be within the State.  Insofar as a school or other suitable place of residence is concerned Section 40 of the Act envisages regulation and supervision and again from this I am satisfied that the same must be within the State.  Insofar as care is provided by other arrangements including placing of the child with a relative regulation is envisaged by Section 41 and again this indicates to me that the placement should be within the State.  In relation to Section 36 (1) (c) which permits a child to be placed with a suitable person with a view to his adoption this again is subject to the overriding obligation of the health board to control and supervise and it seems to me that this can only effectively be done if such placement is within the State.
	In these circumstances I am driven to the conclusion that the Child Care Act, 1991 in Section 36 thereof does not empower a health board to place a child in care with relatives or foster parents outside the State.
	The Child Care Act, 1991 Section 47 provides as follows -
	“47.  where a child is in the care of a health board, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper, and may vary or discharge any such direction or order.”

	In construing this Section it is of assistance to look at the function of the District Court under the Child Care Act, 1991.  In a number of Sections the District Court  may act of its own motion: See Sections 22, 25, 26, 27.  The Act in Section 24 provides for the manner in which the District Court shall exercise its jurisdiction - 
	“24.  I n any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the constitution or otherwise, shall -
(a)	regard the welfare of the child as the first and paramount consideration, and 
(b)	insofar as practicable, give due consideration having regard to his age and understanding to the wishes of the child”
	
	The District Court accordingly it seems to me, is something more than a court of appeal and exercises something more than a supervisory jurisdiction.  The Sections which I mention allow the court to act on its own motion and in particular Section 22.  If the court’s function was appellate or supervisory only, then it might well be appropriate to seek to construe Section 47 of the Act in a restrictive manner.  However this Section is couched in the widest possible terms and I can find nothing in the Act insofar as the same deals with the powers, functions and duties of the District Court to suggest that a restrictive interpretation of Section 47 is appropriate.  Unlike Section 36 there is no qualification requiring control and supervision in Section 47.  it seems to me therefore that Section 47 empowers the District Court to do whatever it deems appropriate to achieve the policy of the Act as a whole and the objective set out in Section 24 of the Act.  Accordingly, I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Act. 

	Counsel for the Respondent drew to my attention the provisions of the Adoption Act 1952 Section 40 which provides as follows:
	“40.-
(1)	No person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permit such removal.
(2)	Subsection (1) shall not apply to the removal of an illegitimate child under one year of age by or with the approval of the mother or, if the mother is dead, of a relative for the purpose of residing with the mother or a relative outside the State.
(3)	Subsection (1) shall not apply to the removal of a child (not being an illegitimate child under one year of age) by or with the approval of a parent, guardian or relative of the child.
(4)	A person who contravenes this section shall be guilty of an offence and shall be liable on summary conviction to imprisonment for a term not exceeding twelve months or to a fine not exceeding one hundred pounds or to both.”

	Having regard to the definition of “guardian” in the Adoption Act 1952 Section 2, I am satisfied that a health board in respect of which a care order has been made is a guardian for the purposes of Section 40 (3) of that Act and with the health board’s approval a child (other than an illegitimate child under one year of age) may be removed out of the State.  In relation to a child in care to whom Section 40 (2) applies while a health board has the like control as if it were his parent under the Child Care Act 1991 Section 18 (3) (a) this has not the effect of displacing the mother for the purposes of approval:  the approval of the mother and not the health board is required in respect of such a child.
	In relation to question (iii) as I  have found that there is no limitation placed on the exercise by the District Court of its powers and accordingly I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Act and with or without the period for which the child is so placed being limited.
	The answer to the questions posed in the consultative case stated therefore is as follows -
(i)	  No
(ii)	  Yes
(iii)	  Yes

armonaghanwesthealthboard(jfinnegan)