District Court dismisses HSE application to remove children abroad under s.47 Child Care Act 1991 pending full care order.

[2008] IEDC 2

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

DC & LS

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1 AND CHILD

25 September 2008

1. This matter came on for hearing on Friday 5 September 2008 in the 10:30 List, which is a list usually devoted to short interlocutory

applications which can be dealt with quickly. The matter presented the Court with enormous complexity, the magnitude of which

ought to have been signalled to the Court prior to it being expected to deal with it. Fortunately, the case which was at hearing had

concluded the day prior and this Court was able to facilitate the Application.

2. This is an Application by the HSE pursuant to section 47 of the Child Care Act, 1991, seeking to place the children the subject of

the Interim Care Orders, outside this jurisdiction. The Application was contested by the respondent parents. The HSE called their

Social Worker as a witness for their application and the respondents contesting the Application also gave evidence.

3. This matter arises from the absences of these children at their place of schooling. On 22 May 2008, the National Educational

Welfare Board faxed the Social Work Department advising that Child 2, aged 9 years, had not returned to school since 7 January

2008. This triggered an investigation which resulted in an Application for an Emergency Care Order on 6 June 2008. The Social

Worker’s report sets out in detail the circumstances surrounding this case which I can say is very tragic indeed. The paternal aunt

(“Aunt”) features from the very outset in this case, in fact, the Educational Welfare Officer faxed the HSE on 3 June 2008, and

expressed Aunt’s concerns to them. It is not clear how Aunt became involved in this case prior to the Emergency Care Order

Application.

4. The matter next came before this Court on 13 June 2008. The Court, having considered the Social Work Court Report dated 12

June 2008, granted an Interim Care Order pursuant to section 17 of the Child Care Act, 1991. One point which should be made is that

on page two of the said Report, it states that “mother stated that she would be ‘clean’ within two weeks and able to parent her

children after that time. It appeared that mother lacked insight into the reality of the time it would take to recover from a serious and

enduring heroin and cocaine addiction.” However, without medical or professional help or intervention both respondents tackled their

addiction over the summer months and have not since July taken drugs. The Court acknowledges this monumental step taken by the

Respondents.

5. Interim Care Orders have routinely been applied for and granted by this Court. In Social Work Report dated 5 August 2008, at page

four, it is stated that:

“it is considered necessary for the HSE at this point to make formal medium – long term plans for Child 1’s and Child

2’s care in order to ensure the continued promotion of their academic, social and emotional needs whilst

endeavouring to maintain the children in the safe care of their family.”

6. To date, I have not seen, nor has evidence been given to this Court in respect of the academic needs or requirements of these

children. Up to and including this Report, I can understand the HSE’s approach to this case but the inattentive and indifferent

participation of the respondents up to the end of August does not sanction the HSE to depart from the norms in dealing with this

matter. Firstly, a plan must be a plan and secondly it must specifically take into account the needs and requirements of the children.

Such a plan has not been devised to date.

7. In determining this Application, that is an Application to locate the children in a foreign jurisdiction, the Court has carefully

considered all the evidence in this matter but before making such an Order the Court must comply with the basic minimum criteria laid

down by the Supreme Court in the case of Western Health Board v KM [2002] 2 IR 493, namely that the Court should weigh all

relevant factors including:

(i) The constitutional rights both of the child and of his/her parents;

(ii) The parameters of law regarding children in the jurisdiction in which it was proposed the child should live. For

example, did the principle that the welfare of the child was paramount apply? Were the normal principles of the

comity of courts accepted? Was it likely that the orders of the Irish court would be recognised and enforced?

(iii) Was the country concerned a signatory to the Hague and/or Luxembourg Conventions on Child Abduction?

(iv) Was 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 could such a system

readily be established?

(v) If the child was placed abroad, would access to the child by the natural parent or parents be a practical

possibility in terms both of distance and of expense?

(vi) Was there a reasonable possibility of using either undertakings or mirror orders to make the position of the child

and of the relevant health board more secure?

8. The HSE place great store upon the Social Work Report dated 2 September 2008, grounding this Application. At page two of this

Report, out of the blue comes the statement that “exploring the options for the children’s care, all were in agreement that Aunt and

her family could offer the children the most stable and secure living environment on an ongoing basis.” It appears to this Court, based

on the evidence of the Social Worker, that the existing arrangement and the arrangement involving Aunt were the only options

considered and that temporary foster placement within this jurisdiction, which is considered in all case before this Court, was not

considered in this case. No reason of any substance was offered for such a departure.

9. I have read the very sterling but subjective Character Reference of Aunt, dated 30 August 2008 from Aunt’s adopted sisters, one

of whom as a practicing solicitor, the significance of this will be addressed later. Nonetheless, despite what is said in the Reference,

on the evidence of the Respondents, I do not believe that an active nor lively relationship between these children and Aunt existed

prior to June of this year nor that such a relationship “dates back to when they were babies.” I believe that the involvement is of

fairly recent vintage. Aunt stated that she would “ensure that Child 1 and Child 2 continue to feel comfortable with their Irish

identity.” In my opinion, they should feel proud of their Irishness and made to feel proud of a very rich and dynamic nationality. This is

a very important aspect of this case because they are Irish citizens and their unique and individual identity must always be respected

and they have a constitutional entitlement to the protection of their identity.

10. Over the summer months, Child 1 and Child 2 spent two weeks with the Aunt’s foster family and not once were they brought to

mass. This fact had to be elicited by the Court itself. In fact, the HSE had to leave the Courtroom to ascertain where the nearest

Roman Catholic Church was situated. This, to my mind, is not respecting the very identity of these young children and their personal

rights. Personal rights in education and religion are protected by our Constitution. Religion is not only a stand-alone right but is also a

significant element of our educational system (parental and scholastic) for the majority of Irish citizens. From Article 42 of the

Constitution we see that

“[t]he State acknowledges that the primary and natural educator of the child is the Family and guarantees to

respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral,

intellectual, physical and social education of their children.”

11. In Ireland, in the main, children grow up to be worshipping people, be they Catholic, Protestant, or whatever, for whom religion is

probably the most important part of life. For the past number of decades, the relations of Church and State demonstrate a complete

mutual understanding and cordiality, with the result that the religion of the home and the Church enters fully and directly into school

life, and this is due to public recognition that the children should be educated in accordance with the wishes of their parents and their

priests. Religion, and its observance, is an integral part of a Christian child’s life. Articles 40 to 45 set out the fundamental rights of

the citizens and a discrete Article is included to foster and protect Religious beliefs in Ireland, Article 44 provides that:

“[t]he State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in

reverence, and shall respect and honour religion.”

12. To move on, I have read and considered quite a number of HSE Reports in this matter together with various appendices.

Notwithstanding this, as well as a Character Reference from a former practising solicitor, certain important and significant information

was absent from the attention of the Court when the applicant had finished its evidence-in-chief. For it was only on cross-

examination of the HSE witness by Counsel for the respondents did this Court find out that Aunt’s son was alleged to have taken

cocaine and ecstasy tablets. The cocaine allegation was denied but it is accepted that some nine months ago, Aunt’s son did take

two ecstasy tablets. As I said, this important and significant fact is not to be found in the many reports before this Court and this

represents a serious deficit in the reports and evidence of the HSE before this Court.

13. The National Standards for Foster Care 2003 provides that a section 36 assessment is carried out by the fostering team when

“Relatives who apply or requested to apply, to care for a child or young person under section 36(1)(d) of the Child Care Act, 1991

participate in a comprehensive assessment of their ability to care for the child or young person and are formerly approved by the

health board.” The National Standards provide that “[i]n order to ascertain the Applicant’s suitability, health boards carry out checks

of their own relevant records and those of other health boards or equivalent authorities in other countries where the applicants have

previously lived: at page 33.” In relation to the allegation and the admission, this Court has not been told nor has evidence been

proffered that a full investigation has been conducted pursuant to a section 36 Relative Foster Care assessment given the new

information to hand. The Child Protection concerns surrounding this issue and the failure to highlight this fact to the Court are a

source of genuine concern in this matter.

14. In relation to the educational needs and requirements of these children, I am not satisfied that they have been adequately

addressed in the instant matter. Much more than merely informing this Court that there are school placements available in Country 1

needs to be done. I accept that the attendance of these children at school has been nothing short of appalling. This is no fault of the

children but these children are entitled to an Irish education unless cogent reasons exist as to why such is not possible. Is there a

school near them which teach and educate children in the Irish tradition? What subjects do these children like? What are their

strengths and weaknesses? All these factors are absent from the superficial assessment of these children’s educational needs.

15. In Ireland, the Constitution adroitly protects the family, religious, and educational rights of its citizens which were inspired, in

great part, by Christian orthodoxy and safeguarded by the Supreme Court as illustrated in case of In re Article 26 and the School

Attendance Bill 1942 [1943] IR 334, a case decided in the infancy of Irish constitutional law, where the Court held invalid a statutory

provision aimed at giving the Minister for Education ultimate control over the choice of school for children between the ages of 6 and

14. Likewise, the Supreme Court itself protects the right of religious Schools to deliver a religious education which is far from merely

educating through teaching. Catholic Schools, and other religious institutions, received this endorsement from the Supreme Court in

the case of Quinn’s Supermarket v Attorney General [1972] IR 1 wherein Walsh J, stressed that Article 44.1 (dovetailed with the

Preamble and Article 42) “reflects a firm conviction that we are a religious people”. An Irish education recognises Irishness as a unique

and valuable subject in itself. In John Mescal’s Religion in the Irish System of Education (1957), page 29 states that an Irish

education:

“had to give of its best to the spiritual and material recreation of Irish life by putting the national ideals uppermost…

The children need to admire and cherish their own heroes and the ideals that were to be found in Gaelic life, and

the best of Irish literature in either language. They should be constantly hearing of the personality and work of

Pearse and Davis: Dail Reports, Vol. 110 (25/5/1948) p. 2161. There could be no material progress in Ireland unless

it was accompanied by a popular revival, a new sense of public spirit”.

16. Suffice to say that, if at all possible, an Irish child is entitled to an Irish education. Also, suffice to say that prior to rising to

consider this matter, the Court did allow both parties an opportunity to lodge written submissions in relation to this case; albeit that a

short time only could be allowed, both the applicant and respondent were happy to allow this Court reach its decision based upon the

evidence before the Court.

17. The present Application, the HSE maintain is supported by the case of Western Health Board v KM [2002] 2 IR 493. In that case,

McGuinness J, warned that such an Order as is requested here “should be made rarely and with considerable caution.” The learned

Supreme Court judge goes on to say that

“[i]n [her] 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 s. 40 of the Adoption Act, 1952.”

18. In that case, the Supreme Court made its decision based upon the facts of the case. Thus, the ratio decidendi is based upon the

actual facts of the case and not on hypothetical circumstances. I am bound by the principle which is espoused by the Supreme Court

and thus it is necessary to address the matter of judicial precedent. In Considine v Shannon Regional Fisheries Board [1994] 1 ILRM

499 at 501, Costello J (as he then was) stated:

“[t]he doctrine of judicial precedent provides that a principle of law which is the basis for an actual decision of the

Supreme Court must be followed by the lower courts. Like many general principles, the principle of judicial precedent

can be easily stated but may be difficult to apply in practice. And undoubtedly there may be instances where the

ratio of a case is not always easy to discover. Again, the principle is clear. The ratio of a case is discovered by

determining what proposition of law justified the decision in the light of the material facts which the court decided.”

19. The case of Western Health Board v KM [2002] 2 IR 493 concerned a Full Care Order pursuant to section 18 of the Child Care Act.

Although a Full care Order was in place the Supreme Court advised caution in exercising one’s jurisdiction in making an Order that a

child can be placed outside of this jurisdiction. Clearly, if one was to exercise “considerable caution” in relation to section 18 then on

a section 47 Application contingent on a section 17 matter, the Court ought to exercise “extreme caution”. Furthermore, adopting the

principle set out in the Western Health Board case, that such an Order contingent on a section 18 Care Order should only be made on

rare occasions, then clearly an Order contingent on an Interim Care Order, that is a section 17 application, ought only be made in the

most exceptional of circumstances based on the ratio decidendi of the legal authority quoted.

20. Therefore, having regard to the ratio, the District Court must first have granted a Full Care Order prior to considering such a

placement Application. Thus, the District Court cannot grant such an Application to place children in a foreign jurisdiction when such

children are temporarily under the protection of the Court pursuant to section 17, that is, an Interim Care Order and because, the

Court is precluded from considering such placements on a temporary basis.

21. Accordingly, the Court refuses the applicant’s Application pursuant to section 47.