Supreme Court allows Health Board placement of child abroad via District Court direction under Section 40 Adoption Act 1952.

THE SUPREME COURT

Record No. 103/2001

Denham J.

Murphy J.

Murray J.

McGuinness J.

Hardiman J.

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE WESTERN HEALTH BOARD

APPLICANT/RESPONDENT

AND

KAREN M

RESPONDENT/APPELLANT

Judgment of Mrs Justice McGuinness delivered the 21st day of December 2001

This is an appeal from a judgment and order of the High Court (Finnegan J.) on a Consultative Case Stated. The question of law

in the Case Stated was referred to the High Court pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961, by

Judge Mary Devins of the District Court at the request of both the Applicant and the Respondent. The proceedings before the

District Court concern a child who is in the care of the Applicant/Respondent pursuant to a Care Order made under Section 18

of the Child Care Act 1991. The Respondent/Appellant is the mother of the child. The Applicant/Respondent (“the Health

Board”) seeks to place the child in the foster care of a relative of the Respondent/Appellant (“the mother”). This relative

resides in England. The Health Board has made an application to the District Court pursuant to Section 47 of the Child Care Act

1991 for a direction that the child be so placed.

The Consultative Case Stated is set out by the learned judge of the District Court as follows:

“(a) The proceedings herein come before me by way of an application pursuant to Section 47 of the Child Care Act 1991

for directions on the questions affecting the welfare of a child in the care of a Health Board and, more specifically

‘whether it would be in the best interests of the above named child Thomas M to be placed in foster care with a cousin

of Karen M in the United Kingdom’...At a hearing of the proceedings before me on the 28th day of February 2000 the

direction sought herein by the Applicant was amended on consent to read as follows:-

‘That the above named child Thomas M be placed in care with a cousin of Karen M in the United Kingdom’.

(b) When the matter came before me on the 28th day of February 2000 the following witnesses gave evidence at the

hearing namely: for the Applicant, Aisling Ryan and for the Respondent, the Respondent herself. The facts admitted or

proved before me are as follows:

1. The infant Thomas M was born on the 19th day of May 1996. The Respondent, who is not married, is the

infant’s mother. Arising from concerns felt by the Applicant due to the Respondent’s psychiatric condition and

inability to care for the infant an Emergency Care Order was sought and obtained on the 7th day of June 1996, an

Interim Care Order was sought and obtained on the 19th June 1996 and further Interim Care Orders were sought

thereafter until the final hearing of the said care proceedings on the 22nd day of June 1997. On that occasion an

order was made pursuant to Section 18 of the Child Care Act 1991 committing the infant to the care of the

Applicant until he attained the age of eighteen years. The basis for the making of the said order was the

Respondent’s inability to care for the said infant due to her ongoing psychiatric difficulties.

2. At all material times since the infant was first committed into the care of the Applicant he has been placed by

the Applicant in the care of foster parents in the County of Mayo. At all material times the Applicant perceived the

said placement as being a short term placement only as the said foster parents were not in a position to offer the

infant long term fosterage. In or about the early part of 1999 the issue of the long term care of the infant was

under active consideration by the Applicant herein. The Applicant was approached by a married couple resident in

Kent, England, namely I and P H . I H is a cousin of the Respondent. The Hs indicated to the Applicant that they

were interested in fostering the infant on a long term basis. Once this had been indicated the Applicant arranged

for an assessment to be carried out on the Hs by the child care authority in England in whose functional area the

Hs resided, namely Kent Social Services. The outcome of the said assessment was satisfactory. The witness for

the Applicant gave evidence in her opinion as a professional (the said witness being a social worker employed by

the Applicant) that it was generally better that children be placed with relatives and it was her further opinion that

the particular infant in this case should be placed with relatives and more particularly with the Hs in England. In

cross examination the witness gave evidence that while it would not be unusual for the relatives of a child in care

to contact the Applicant with respect to placement of a child with them, that it would be unusual for such contact

to be made where there was no relationship between the relatives and the parent or parents of the infant in

question. She further gave evidence that as far as she was aware there was no relationship between the Hs and

the Respondent. (sic) On the evidence of the witness for the Applicant I H was aged somewhat under 50 and P H

somewhat over 50. On further cross-examination the witness for the Applicant indicated that the possibility of

arranging foster parents in this jurisdiction had been considered by the Applicant and that a family had been

identified who resided in the County of Mayo. The witness went on to indicate that in the event that approval was

not forthcoming for a placement abroad there would be a family available to take the infant in this jurisdiction on a

long term basis.

3. The Respondent gave evidence in which she acknowledged that she had a serious medical problem and

psychiatric difficulties over the years. She accepted that the infant had to be taken into care due to her condition

whilst indicating that she still held on to the possibility that the infant (and a second child born subsequently to the

infant the subject matter of these proceedings, also now in the care of the Applicant) would some day be returned

to her. The Respondent gave further evidence that I H had only been in the briefest contact with her in recent

years and had not made her aware of her and her husband’s interest in the infant being placed with them. The

Respondent expressed the opinion that it was not in the best interests of the infant that it be placed in the care of

the Hs in particular or more generally that he go to England. In response to a clarification which I sought from the

Respondent, she indicated that she had no difficulty with the infant being in care locally as she would then be able

to seem him regularly and as a way towards his return to her care as soon as possible. On cross-examination the

Respondent agreed that she had had problems with her medication. She accepted that there had been difficulties

with access in the past and that a lot of this was due to her fault although she also ascribed some fault to the

Applicant. It was put to her that the medical advice was that the infant would not in the foreseeable future be

returned to her care and she accepted that this was the situation at that moment but that she hoped that would

change. The Respondent further gave evidence that she had been residing in this jurisdiction for the last seven

years. She accepted that all her immediate family resided in England. She did not accept that the infant would

have more contact with his extended family if he was in the care of a relative in England and gave evidence that

neither her parents nor siblings had expressed interest in meeting the infant. She further gave evidence that the

Hs had no contact with her parents or family in England.

(c) At the conclusion of the Respondent’s evidence I sought submissions from the legal representatives for the Applicant

and the Respondent in respect of certain matters which concerned me. It had previously been indicated to me that both

the Applicant and the Respondent were of the opinion that a question or questions of law arose in the proceedings before

the Court in respect of the power of the Applicant, or in the alternative the Court, to place or direct the placement of

an infant in the care of a Health Board pursuant to Section 18 of the Child Care Act 1991 with relatives or foster parents

outside the State pursuant to the provisions of Section 36 of the Child Care Act 1991 and/or Section 47 of the Child Care

Act 1991. They requested that I so state a case pursuant to the provisions of Section 52(1) of the Courts (Supplemental

Provisions) Act 1961. I was of the opinion that the obtaining of a determination of the High Court in relation to the

matters raised would be desirable. The proceedings were then adjourned, in the first instance to the 15th March 2000

for the purposes of enabling the parties to agree the questions of law to be referred to the High Court. The said agreed

conditions are as set out at paragraph (d) hereunder.

(d) Accordingly the questions of law for the determination of the High Court are as follows:

1. 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 this 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 (ii) above is Yes can the period for which the child is so placed be limited?”

The Case Stated is dated the 25th day of September 2000.

It is clear, as is accepted by both parties, that the questions posed in the Case Stated are not only of vital importance to the

child and to his mother but also have far reaching implications both for the Applicant/Respondent and for all other Health Boards

in the State.

The Decision of the High Court

The matter came on for hearing in the High Court before Finnegan J. (as he then was) who delivered a reserved judgment on

14th March 2001. Having considered the provisions of Section 36 of the Child Care Act 1991 in the context of the Act as a

whole he held that the section required the Health Board to continue to exercise control and supervision over a child that was

placed in its care and held that Section 36 did not empower a Health Board to place a child in care with relatives or foster

parents outside the State. This aspect of the decision of the learned High Court Judge is not under appeal and is accepted as

correct by both parties. There is therefore no need at this point to consider in any detail the reasons which led the learned High

Court judge to this conclusion. In this connection it was pointed out in oral argument to this Court by Senior Counsel for the

Health Board that the original application to the District Court had been made pursuant to Section 47 of the 1991 Act. No

application had been made pursuant to Section 36.

Finnegan J. went on to consider the terms of Section 47 of the Child Care Act 1991. He referred to the functions of the District

Court under the 1991 Act and pointed out that under a number of Sections of that Act the Court might act of its own motion.

He drew attention to the terms of Section 24 of the Act which provided that in any proceedings before a Court under the 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, should regard the welfare of the child as the first and paramount consideration. He went on to say:-

“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 objectives 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.”

The learned High Court judge went on to consider the terms of Section 40 of the Adoption Act 1952. I shall refer to that

Section, as it has been affected by the judgment of the High Court in The State (At the Prosecution of K.M. and R.D.) v the

Minister for Foreign Affairs, Marie Burke and the Attorney General [1979] IR 73, later in this judgment.

The learned High Court judge further found that in relation to Question (iii) of the Case Stated 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.”

He concluded that the answer to the questions posed in the Consultative Case Stated was as follows:

(i) No.

(ii) Yes

(iii) Yes.

He made an order accordingly on the 14th March 2001. It is against this judgment and order that the Appellant/Respondent has

appealed to this Court.

Notice of Appeal

In her Notice of Appeal the Appellant seeks an order setting aside the relevant parts of the order of the High Court and in its

place an order answering the questions (ii) and (iii) posed in the Consultative Case Stated herein as “No”. In the written and

oral submissions made to this Court on behalf of the Appellant reliance was in the main placed on the following grounds of

appeal:-

“......that the learned trial judge erred in law and in fact or on a mixed question of law and fact as follows:-

(a) In holding that in the exercise of its jurisdiction pursuant to the Child Care Act 1991 the District Court exercises

something more than a supervisory jurisdiction and that that finding justified interpreting Section 47 in other than

in a restrictive manner.

(b) In holding that there was nothing in the Child Care Act 1991 requiring the restrictive interpretation of Section

47 of the said Act...

(c) In failing to properly construe the meaning of Section 47 of the Child Care Act 1991 in the light of the overall

statutory powers and duties of the District Court under that legislation.

(d) In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully direct the

placement of a child, placed in the care of the Health Board pursuant to Section 18 of the Child Care Act 1991,

with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Child Care Act

1991.

(e) In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully place a child with

relatives or foster parents outside the State, the learned trial judge failed to have proper regard to, or to properly

interpret the statutory powers and duties of the District Court to monitor a child placed in care, for the entire of

the period that the child remains in care...

(f) In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully place a child with

relatives or foster parents outside the jurisdiction, the learned trial judge failed to correctly interpret the

provisions of the 1991 Act in that he failed to have due regard to the fact that in so placing a child the District

Court divests itself of all of its statutory functions and powers in relation to the child’s concern.

(g) In holding that a Health Board into whose care a child has been placed pursuant to the provisions of the Child

Care Act 1991 is a guardian for the purposes of Section 40(3) of the Adoption Act 1952. Further, in holding that

with Health Board’s approval, a child who comes within Section 40(3) of the said Act may be removed out of the

State.”

The Statute

The issue before the Court, therefore, is the proper construction of Section 47 of the Child Care Act 1991. It is accepted by

both parties that the section must be viewed within the context of the Act as a whole. The Child Care Act 1991 was enacted

by the Oireachtas (following many years of discussion, consultation and pressure by persons and bodies interested in issues of

child care) with the purpose of replacing and updating the provisions of the Children Act 1908, which had been described by

O’Flaherty J. in this Court as perhaps having been “an enlightened piece of legislation when enacted” but now “showing its age”

(MF v Superintendent Ballymun Garda Station [1991] 1 IR 89).

While the present Child Care Act was enacted in 1991 its main provisions were not brought into effect until 1995, when by the

Child Care Act 1991 (Commencement) Order 1995 (S.I. No. 258/1995) Section 4, sub-sections (3) and (4) of Section 6,

Sections 12 to 48, Sections 68 and 70 and Sections 75 to 78 were brought into operation from the 31st day of October 1995.

In summary these were the provisions covering the placing of children in voluntary care, the bringing of children into care in

emergency situations, and the making of long term care and supervision orders. The relevant sections in Part V deal with the

jurisdiction, powers and procedures of the Court in relation to child care proceedings, while Part VI, which includes both Section

36 and Section 47, in general sets out the arrangements that may be made by Health Boards in regard to children in their care.

The long title of the Act sets out that it is “an Act to provide for the care and protection of children and for related matters”.

The general function of the Health Board under the Act is set out in Section 3 which provides:

“3(1) It shall be a function of every Health Board to promote the welfare of children in its area who are not receiving

adequate care and protection.

(2) In the performance of this function, a Health Board shall -

(a) take such steps as it considers requisite to identify children who are not receiving adequate care and

protection and co-ordinate information from all relevant sources relating to children in its area.

(b) Having regard to the rights and duties of parents, whether under the Constitution or otherwise -

(I) regard the welfare of the child as the first and paramount consideration, and

(II) In so far as it is practicable, give due consideration, having regard to his age and understanding, to the

wishes of the child; and

(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own

family.

(3) A Health Board shall, in addition to any other function assigned to it under this Act or any other enactment, provide

child care and family support services, and may provide and maintain premises and make such other provision as it

considers necessary or desirable for such purposes, subject to any general directions given by the Minister under

Section 69.

(4) ...”

A number of other sections of the Act are relevant to the matters at issue in these proceedings. They are as follows:-

“9(1) A Health Board may, subject to any general directions given by the Minister and on such terms or conditions as it

sees fit, make arrangements with voluntary bodies or other persons for the provision by those bodies or other persons

on behalf of the Health Board of child care and family support services which the Board is empowered to provide under

this Act.

(2) Nothing in this section shall empower a Health Board to delegate to a voluntary body or any other person the duty

conferred on it under Section 4 to receive certain children into care or the power to apply for an order under Part III, IV

or VI.

(10) A Health Board may, subject to any general directions given by the Minister and on such terms or conditions as he

thinks fit assist a voluntary body or any other person who provides or proposes to provide a child care or family support

service similar or ancillary to a service which the Health Board may provide under this Act -

(a) by a periodic contribution to funds of the body or person;

(b) by a grant;

(c) by a contribution in kind (whether by way of materials or labour or any other service).”

Part IV Care Proceedings

“16. Where it appears to a Health Board with respect to a child who resides or is found in its area that he requires care

or protection which he is unlikely to receive unless a Court makes a Care Order or a Supervision Order in respect of him,

it shall be the duty of the Health Board to make application for a Care Order or a Supervision Order, as it thinks fit.

18(1) Where, on the application of a Health Board with respect to a child who resides or is found in its area, the Court is

satisfied that -

(a) the child has been or is being assaulted, ill treated, neglected or sexually abused, or

(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or

(c) the child’s health, development or welfare is likely to be avoidably impaired or neglected,

And that the child requires care or protection which he is unlikely to receive unless the Court makes an order under this

section, the Court may make an order in this Act referred to as a (“Care Order”) in respect of the child.

(2) A Care Order shall commit the child to the care of the Health Board for so long as he remains a child or for such

shorter period as the Court may determine and, in such case, the Court may, of its own motion or on the application of

any person, extend the operation of the order if the Court is satisfied that the grounds for the making of a Care Order

continue to exist with respect to the child.

(3) Where a Care Order is in force, the Health Board shall -

(a) have the right control over the child as if it were its parent;

and

(b) do what is reasonable (subject to the provisions of this Act) in all of 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 a 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.

(4) ....(the remainder of the section is not relevant).”

Part V Jurisdiction and Procedure

“24. In 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;

(b) ...

28.(1) The District Court and the Circuit Court on appeal from the District Court shall have jurisdiction to hear and

determine proceedings under Part III, IV or VI.

(2) Proceedings under Part III, IV or VI may be brought, heard and determined before and by a justice of the District

Court for the time being assigned to the district court district where the child resides or is for the time being.”

Part VI Children in the Care of Health Boards

“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 childrens’ 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 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.

(2) 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’ shall be construed accordingly.

(3) 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.

47. Where a child is in the care of the 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.”

Submissions of Counsel

Senior Counsel for the Appellant, Ms O’Toole, submitted that the learned High Court judge had erred in holding that in child care

matters the District Court was “something more than a court of appeal” and exercised “something more than a supervisory

jurisdiction”. She contended that in the context of the scheme of the 1991 Act Section 47 should be given a restrictive

interpretation. The District Court, she submitted, was in no sense a Court of Appeal under the 1991 Act; the Act did not

envisage appeals being made from the decisions of the Health Board to the District Court. The jurisdiction of the District Court

was that of a Court of first instance as set out in Section 28 (quoted above).

Counsel for the Appellant accepted that the District Court had a supervisory jurisdiction which was reflected in the Court’s

powers inter alia to appoint a guardian ad litem for a child, to procure necessary reports, and to provide for parental access to

a child. However, this supervisory jurisdiction extended, she submitted, solely to matters within the parameters of the 1991

Act; Section 47 should not be construed to mean that the District Court was at large in making wide ranging orders affecting

children who are in the care of the Health Board.

Ms O’Toole stressed that the whole structure of the child care system under the 1991 Act was considerably more restrictive

than the former “Fit Person Order” régime under the Children Act 1908. Under the 1991 Act only a Health Board could apply to

the District Court for an order placing a child in long term care, and only a Health Board could hold a child in care. While, under

Section 36, the Health Board was empowered to take various steps such as placing a child with a foster parent or in residential

care, or making other suitable arrangements, the child remained in the care of the Health Board throughout and the Health

Board was responsible for his or her welfare. The District Court had a supervisory

jurisdiction within this régime and within this régime only. Section 47, Counsel argued, enabled the District Court to make

necessary orders (in the interests of the child) of a type not necessarily specified in the other sections of the Act, but these

orders must remain within the context of the child being in the care and under the actual supervision of the Health Board.

Counsel for the Appellant submitted that if a child such as the child in question in these proceedings was placed with relatives

in a foreign jurisdiction, that child was no longer in any real sense in the care of or under the supervision of the Health Board. In

those circumstances the supervisory jurisdiction of the District Court over the child would become in practical terms a nullity.

The District Court might make orders affecting the child but would have no way of enforcing such orders. To all intents and

purposes, once the child was placed outside the jurisdiction, neither the Health Board nor the District Court could fulfil their

respective roles in promoting and overseeing the welfare of the child.

In summary Ms O’Toole submitted that the District Court could not lawfully direct the placement of a child with relatives or

foster parents outside the State pursuant to the provisions of Section 47 and that to do so was ultra vires its power.

Senior Counsel for the Western Health Board, Mr Durcan, accepted that Section 47 of the 1991 Act must be construed in the

context of the Act but submitted that it should be construed in the context of the Act as a whole and of its general purpose

rather than restrictively in the context of Part VI alone. The purpose of the Act was summarised in its long title - an Act to

provide for the care and protection of children - and in Section 3 the Health Board was enjoined to regard the welfare of the

child as the first and paramount consideration. It was notable that the wording of Section 47 closely resembled the wording of

Section 11 of the Guardianship of Infants Act 1964, which also operated in a scheme where the welfare of the child was

paramount. Section 11 had always been interpreted very widely and in a purposive way; the same approach should apply in the

construction of Section 47 of the 1991 Act. This had been the approach taken by the learned High Court judge.

In arguing for a purposive interpretation of the section Mr Durcan submitted that the Act was a remedial or protective statute

intended to protect children and that as such it should be given a liberal and purposive interpretation in accordance with the

principles enunciated by Walsh J. in the case of Bank of Ireland v Purcell [1989] IR 327. Further the Act should be construed in

the light of the realities of every day life and the variety of circumstances in which the need to protect children may arise. This

view, he said, found support in the words of Keane J. (as he then was) in the case of DPP (Houlihan) v P.G. [1996] 1 IR 281

where the learned judge stated in regard to certain provisions of the Children Act 1908:

“At the same time, as was properly said in the course of argument, they must be applied in the light of the Constitution,

and, to the extent that it can be done without violence to the language of the enactment, in a matter which reflects the

reality of life today.”

Mr Durcan also suggested that the case of M.F. v Superintendent Ballymun Garda Station [1991] 1 IR 281 was authority for the

proposition that the interpretation to be placed upon statutory provisions designed to protect children should be reached on

foot of principles particularly derived from the clear constitutional protection of the interests of children in any legal

proceedings.

It should, Mr Durcan submitted, not be forgotten that the Health Board had made the current application to the District Court

precisely because the Board believed on the evidence available to it that the proposed placement was in the best interests of

the child concerned.

Counsel for the Health Board also submitted that the Child Care Act 1991 was intended to be a comprehensive code for the

protection of children and was designed to operate effectively in the context of the realities of life in Ireland at the end of the

twentieth century. Two aspects of the reality of life in this country were firstly a long history of emigration and secondly

increasing mobility in regard to employment opportunities. Mr Durcan pointed to the example of the close economic and social

relationship between this jurisdiction and Northern Ireland. Many families in border areas would have close relatives on the other

side of the border in another jurisdiction, albeit perhaps only a number of miles from their own home. Equally there would be

many cases where families would reside on one side of the border for a number of years but would then move to the other side

perhaps for reasons concerned with job or housing opportunities. It must also be accepted that the increasing mobility of

persons between the various jurisdictions within the European Union was not only permitted but positively encouraged.

It was, said Mr Durcan, against this background that the Court should view the construction of the provisions of the Child Care

Act 1991 as put forward by the Appellant. The Appellant contended that a child could not, no matter how compelling the

circumstances to the contrary, be placed with a relative or foster parent outside the jurisdiction. This would mean that a child

whose family lived in Donegal could not be placed with relatives who lived in Derry even if this was the course of action which

clearly best promoted the welfare of that child. It would equally mean that a foster family who had had a child in their care for

a number of years and who were obliged to move to another jurisdiction for employment purposes could not bring their foster

child with them even though the child might have integrated into their family and even though movement to another foster

family might be clearly detrimental to the child's interests. If the interpretation of Section 47 put forward by the Appellant was

correct in stating that such placement outside the jurisdiction was prohibited because it would place the child outside the

control of the Health Board and/or the District Court, then it would appear that such a course of action could not take place

even if the parent or parents consented to it, since such consent would not remedy the suggested difficulty in regard to the

lack of continuing control.

Mr Durcan submitted that the effect of the construction contended for by the Appellant would be that in a significant number of

cases the course of action which would best promote the welfare of the child would not be available to the Health Board or

indeed to the District Court dealing with the care application. The Respondent submitted that such a situation could never have

been intended by the legislature, would be detrimental to the welfare of children and was not required by a proper purposive

interpretation of the provisions of Section 47 and of the Child Care Act as a whole.

In regard to the provisions of Section 47 itself Counsel for the Health Board stressed that the first and most striking thing about

the section was the breadth of the language which was used. The second was the striking similarity between the wording of

the section and that used in Section 11 of the Guardianship of Infants Act 1964. This surely indicated that it must have been

intended by the Oireachtas that the Court when exercising jurisdiction under Section 47 of the 1991 Act would have the same

wide ranging powers in regard to the welfare of children as would be the case in disputes between parents pursuant to Section

11 of the 1964 Act. This interpretation was also consistent with the approach of McCracken J. in interpreting the section in

Eastern Health Board v McDonnell [1999] 1 IR 174.

Finally Mr Durcan pointed out that in many cases Health Boards made arrangements to place children with particular needs in

residential care or in foster care outside their own functional area, and also outside the actual jurisdiction of the particular

District Court which had made the Care Order. This was done by a system of co-operation between the various Health Boards,

but if the strict approach advocated by the Appellant were to be followed even these placements would be called in question.

There was also already a high level of co-operation between the Health Boards in this country and the child care authorities in

the United Kingdom. The level of such inter communication and co-operation between the authorities here and in the proposed

foreign jurisdiction was a matter which should and would be taken into account by the District Court in deciding whether to

make an order which involved placing a child outside the State.

Conclusions

The first question that arises is whether the Statute under consideration is to be given a restrictive or a purposive

interpretation. In Bank of Ireland v Purcell [1989] IR 327 this Court considered the proper approach to the construction of the

Family Home Protection Act 1976. In his judgment Walsh J. (with whom Finlay C.J., Griffin J., Hederman J. and McCarthy J.

agreed) stated (at page 333 of the report):

“The Family Home Protection Act 1976 is a remedial social statute enacted to protect the interest of the non-owning

spouse in the family home and to deal with and to seek to remedy the social problem which was created or could be

created by the fact that the spouse who owned the family home could effectively put the other spouse out on the

street by selling it or mortgaging it. This was sometimes done out of vindictiveness and the other spouse had no

redress. Most frequently the victimised spouse was the wife. She and her children could be left to fend for themselves

so far as accommodation was concerned. It was to secure the position of such a spouse that the Act of 1976 was

passed....This Statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out

remedial statutes are to be construed as widely and liberally as can fairly be done.”

I have already very briefly set out the history of the enactment of the Child Care Act 1991. There can be no doubt that it is a

remedial social statute, and was seen to be such by all who were affected by its provisions. Its social and remedial importance

was accepted by all, including this Court and more particularly the District Court, who had for many years striven to operate the

provisions of the Children Act 1908 in a way which made sense in the latter part of the twentieth century. This is borne out in

the decisions relied upon by Mr Durcan in the cases of DPP (Houlihan) v PG [1996] 1 IR 281 and MF v Superintendent Ballymun

Garda Station [1991] 1 IR 281.

I would therefore accept the submission of the Appellant that the construction of the 1991 Act as a whole should be

approached in a purposive manner and that the Act, as stated by Walsh J. should be construed as widely and liberally as can

fairly be done.

This does not, of course, imply that Section 47 can be looked at apart from its context in the general framework of the Act, or

that the widely drawn terms of the section mean that the District Court is simply at large in the orders it may make pursuant to

the section. Counsel for the Appellant is correct in laying stress on the fact that the child in question remains in the care of the

Western Health Board pursuant to the Order of the District Court made on 22nd June 1997. Both the Health Board and the Court

must at all times bear that fact in mind when making any proposals for the future care of the child.

Counsel for the Appellant is, of course, also correct in her submission that the District Court is not an appellate Court under the

Statute; that is clear from the terms of Section 28. It may well be that in his judgment the learned High Court judge did not

intend his use of the word appellate to be understood in a strictly technical sense; he may have used the word appellate as

more or less an equivalent of “supervisory” - a word which he correctly uses to describe the District Court’s jurisdiction under

the Act. The word “appellate” is, however, used in error.

There is a scarcity of authority on the interpretation of Section 47 of the 1991 Act. The only authority which was opened to

this Court (and I can trace no other) is the judgment of McCracken J. in the High Court in the case of Eastern Health Board v

McDonnell [1999] 1 IR 174. In that case case the learned High Court judge considered whether the District Court judge in

question had the power under Section 47 to make wide ranging and detailed orders stretching to the future in regard to the

Health Board’s “care plan” for a child. McCracken J. accepted that the judge had such power. In construing Section 47

McCracken J. stated (at page 184 of the report):

“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.”

In his judgment McCracken J. also stressed that both the Health Board, under Section 3 of the Act, and separately the District

Court, under Section 24 of the Act, were enjoined to observe at all times the paramountcy of the welfare of the child. However,

while local authorities and Health Boards must always have regard to the constitutional rights of the individual child (and other

interested parties), as McCracken J. points out at Pg. 183, it is ultimately the function of the Courts to ensure that the

guarantees given to an individual child are upheld.

While this authority is not, of course, binding on this Court it must be treated with considerable respect. A very similar approach

to the construction of Section 47 was taken by the learned trial judge in the judgment now under appeal. I would in the main

share the views of both learned judges as to the construction of the section.

A number of English authorities were mentioned by Counsel in the course of argument in this Court, but it is clear that these are

not of great assistance since the English Children Act 1980 does not contain any section comparable to Section 47 of the Act

of 1991. The House of Lords in In Re M & H (Minors) [1988] 2 FLR 431 held that the statutory regime in respect of children in

care in England did not admit judicial supervision or review of the merits of decisions made by local authorities in respect of

children in their care, whether such review was sought under the inherent or the statutory jurisdiction of the Court.

Interestingly this position in English law was found to be in breach of Articles 6 and 8 of the European Convention on Human

Rights in the case of R v United Kingdom [1988] 2 FLR 445.

In this jurisdiction both children and parents enjoy constitutional rights. The Oireachtas has rightly drawn attention to these

rights in several sections of the 1991 Act. It is ultimately for the Court and not for the Health Board to protect and enforce

these constitutional rights in respect of children who are in care. This can conveniently be done through the powers given in

Section 47 of the Act. In my view these powers include a power to direct or permit the placement of a child outside the State

where the evidence before the Court indicates that such a placement is truly in the best interests of the child.

Such an order, however, should be made rarely and with considerable caution. The child in question is, as was stressed by

Counsel for the Appellant, in the care of and under the supervision of the Health Board, and the Health Board will continue to

have responsibility for his welfare. The original Care Order was made by the District Court; the supervisory role of that Court

should to the greatest degree possible be maintained.

Before any order placing a child outside the State is made, therefore, the judge of the District Court to whom such an

application has been made should carefully weigh all relevant factors. These would include, inter alia, the following:

1. The constitutional rights both of the child and of his or her parents.

2. The parameters of the law regarding children in the jurisdiction in which it is proposed the child should live. For

example, does the principle that the welfare of the child is paramount apply? Are the normal principles of the comity of

courts accepted? Is it likely that the orders of the Irish court will be recognised and enforced?

3. Is the country concerned a signatory to the Hague and/or Luxembourg Conventions on Child Abduction?

4. Is there already in place a system of co-operation between the child care authorities in the proposed jurisdiction and

the Health Boards in their role as child care authorities in this jurisdiction or can such a system be readily established?

5. If the child is placed abroad will access to the child by the natural parent or parents be a practical possibility in terms

both of distance and of expense?

6. Is there a reasonable possibility of using either undertakings or mirror orders (the use of which has been accepted by

this Court in Hague Convention cases) to make the position of the child and of the relevant Health Board more secure?

This list is by no means exhaustive. All factors relevant to the welfare of the child and to the constitutional rights of all parties

must form a crucial part of the consideration of the District Court when deciding whether or not to make the order proposed.

Relevant evidence should be provided to the District Court on the lines suggested above to enable the Court to make an

informed decision as to which course is most conducive to the welfare of the child.

In the final event, the District Court is bound by Section 24 of the Act of 1991. If after careful scrutiny the evidence before the

Court shows that a placement outside the jurisdiction is in the best interests of the welfare of the child concerned, the District

Court has in my view power under Section 47 of the 1991 Act to permit or direct such a placement.

As far as question (iii) in the case stated is concerned, it is clear that the District Court must also have the power to limit the

period for which the child is so placed if, in the opinion of the Court, such a limitation is in the best interests of the child.

One further issue remains. It was submitted in the Court below and again in this Court by Counsel for the Appellant/Respondent

that the child in question in the District Court proceedings, having been born on the 19th day of May 1996 and being under

seven years of age, is affected by Section 40 of the Adoption Act 1952. The question therefore arises as to whether the power

exercisable by the District Court under Section 47 of the 1992 Act may be negatived in the case of a child under the age of

seven by the terms of Section 40 of the Adoption Act 1952. This section as originally passed by the Oireachtas read 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

permits such removal.

(2) Sub-section (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) Sub-section (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 £100 or to both.”

This section is thus cited by Finnegan J. in his judgment in the Court below.

Unfortunately it appears that the attention of the learned trial judge was not drawn to the decision of the High Court (Finlay P.

as he then was) in the State (M & D) v The Minister for Foreign Affairs and Others [1979] IR 73 in which it was held that the

provisions of sub-section (2) and the words in parenthesis in sub-section (3) of Section 40 of the Act of 1952 were an

infringement of the personal right of the citizen to travel outside the State and, accordingly, should be declared invalid having

regard to the provisions of the Constitution. That case concerned a child of an unmarried couple where it was proposed with

the consent of both parents that the child should travel to Nigeria and reside there.

However Section 40 sub-section (1) and the substantive part of sub-section (3) remain in force. The learned trial judge dealt

with the matter as follows:

“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 the Health Board has the like control as if it

where 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.”

Clearly since sub-section (2) has been held to be unconstitutional the learned judge’s reference to an illegitimate child under

one year of age and to a child in care to whom Section 40(2) applies are no longer applicable. There remains the question as to

whether the Health Board is a proper person to give approval under Section 40(3).

At the time of the enactment of the Adoption Act 1952, which was the first legislation permitting legal adoption in this State, a

particular problem had arisen by which perspective adopters from other jurisdictions, the majority from the United States, were

taking Irish infants abroad for the purpose of adoption. In the main these were infants born to unmarried mothers who in the

circumstances of the time felt themselves unable to care for their own children. There was little or no enquiry or assessment as

to the suitability of the families or environments to which these infants were being brought and no evidence as to whether their

removal from the State was in the best interests of their welfare. It was to cure that particular mischief that the Oireachtas

enacted Section 40. It is, of course, many years since any such situation existed in this country, although parallel situations

have arisen in other jurisdictions.

It is clear that Section 40 is not addressed to the situation which applies in the instant case where the proposal is that the

child be placed with relatives who have been fully assessed by the competent Child Care Authority in the United Kingdom, and

where the entire situation is being fully investigated by the District Court. The powers of the Health Board in regard to a child

who is the subject of a Care Order are set out in Section 18(3) of the Act of 1991. This sub-section has been recited above.

The Health Board is stated to have “the like control over the child as if it were his parent”, may decide the type of care to be

provided for the child, may give consent to any necessary medical or psychiatric examination, and may give consent to the

issue of a passport.

“Guardian” in relation to a child is defined in Section 3 of the Adoption Act 1952 as meaning “a person appointed, according to

law, to be guardian of his person by deed or will or by Order of a Court of competent jurisdiction”. Under the provisions of the

subsequent 1991 Act the District Court is the Court of competent jurisdiction to make a Care Order which transfers the majority

of the powers of a parent or guardian to the relevant Health Board. Under Section 47 the District Court has the requisite power

to “give such directions and make such Order on any question affecting the welfare of the child as it thinks proper”. In my

view, in a situation where a child is in care pursuant to a Care Order, this power in the District Court would be sufficient to

enable the District Court itself to consent to the placement of the child outside the jurisdiction within the terms of Section 40

of the Adoption Act 1952.

Accordingly I would dismiss the appeal and affirm the Order of the learned High Court judge. The answers to the questions

posed in the Case Stated by the judge of the District Court are accordingly:

(i) No

(ii) Yes

(iii) Yes.