District Court upheld Section 47 order restricting child removal pending deportation review and family reunification inquiry.

[2010] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

MM

RESPONDENT

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1

9 July 2010

Summary of the Proceedings to Date

• These proceedings are brought by the applicant, the Health Service Executive (HSE) under the Child Care Act 1991 (the Act).

• The proceedings concern Child 1, born in March 2007.

• The Respondent is Child 1’s mother.

• On 26 February 2010, the HSE made an application pursuant to section 13 of the Act for an emergency care order, which was

granted (the emergency care order expiring on 5 March 2010).

• On 5 March 2010, the HSE made an application pursuant to section 17(1) of the Act for an interim care order, which was granted

(the interim care order expiring on 16 April 2010).

• On 16 April 2010, the HSE made an application pursuant to section 17(2) of the Act for an extension of the interim care order,

which was granted (the interim care order expiring on 13 May 2010).

• Also on 16 April 2010, the Court made an order pursuant to section 47 of the Child Care Act 1991 (the Order) that Child 1 not be

removed from the jurisdiction without 7 days’ prior notice to the Court.

• On 13 May 2010, the HSE made an application pursuant to section 17(2) of the Act for an extension of the interim care order, which

was granted (the interim care order expiring on 10 June 2010).

• Also on 13 May 2010 the Minister for Justice Equality and Law Reform (the Minister) applied to become a Notice Party in the

proceedings, which application was granted.

• On 20 May 2010, the Minister stated that he wished to apply to have the Order revoked or varied. The application was listed for

hearing on 17 June 2010.

• Also on 20 May 2010, the court appointed a guardian ad litem (GAL) for Child 1 pursuant to section 26 of the Act.

• On 10 June 2010, the HSE made an application pursuant to section 17(2) of the Act for an extension of the interim care order,

which was granted, the interim care order expiring on 16 July 2010.

• On 17 June 2010, the Minister’s application to vary or revoke the Order was heard.

Summary of Facts

1. The proceedings are an on-going inquiry. As is usual in proceedings in this Court under the Act, the Court has been furnished with

copies of reports, which are as follows:

• Report of Social Worker 1, 25 February 2010

• Report of Social Worker 2, 2 March 2010

• Report of Social Worker 3, 15 April 2010

• Report of Doctor 1, 19 April 2010

• Report of Social Worker 4, 10 May 2010.

• Report of Social Worker 5, undated, submitted for hearing on 10 June 2010

• Report of the guardian ad litem, 16 June 2010

For the purposes of this decision, I rely on the contents of those reports, and such oral evidence as has been given. The mother has

been present at each hearing, she was unrepresented until 17 June 2010. The mother has not given any evidence. Child 1 is an

infant, and is not a party to the proceedings. He has the benefit of a guardian ad litem appointed on 20 May 2010. There has been no

cross examination of any HSE witness. None of the matters set out herein are final, all remain susceptible to challenge by any party.

2. The mother is a Country 1 citizen, who came to Ireland in January 2007.

3. Child 1 was born in Ireland on 22 March 2007. He is not an Irish citizen.

4. Child 1’s parents are not married to each other. The father has been identified (in the report of the guardian ad litem dated 16 June

2010), and is reported to be in prison in Country 1. He is not on notice of and is not a party to these proceedings.

5. The report dated 19 April 2010 from Doctor 1’s Hospital, in its summary, states that:

“the mother has been attending Mental Health Services at the Hospital, since August 2007. She has a diagnosis of

Depressive Disorder and Emotionally Unstable Personality Disorder. She was admitted as an in-patient from 23rd

August 2007 to 24th October 2007 and has since been treated in the community. Since she commenced attendance

at the Hospital she has never enjoyed a period of significant stability with regards to her mental health. She

presents as having difficulties in dealing with her emotions, has recurrent suicidal and homicidal ideation. She will

require on-going mental health follow up as an outpatient together with community support and continued

antidepressant medication”.

6. It is further reported (in the social worker reports) that the mother has had homicidal thoughts regarding Child 1, and that she has

sexually abused him and/or been sexually inappropriate with him.

7. It is further reported (in the social worker reports) that the mother “does not feel that she will ever be able to care for Child 1 and

accepts that being in care is what is in his best interests”.

8. Child 1 was placed in the care of the HSE during the mother’s inpatient admission in 2007. This was a “voluntary care” placement,

pursuant to section 4 of the Act and the HSE were sufficiently concerned about the care of Child 1 to warrant their receiving him into

voluntary care under that section.

9. Child 1 was placed in care again on 18 January 2008. Again, this was a voluntary care placement pursuant to section 4 of the Act.

It is reported that this was due to “deterioration in [the mother’s] mental health and disclosures which she made to a psychiatric

social worker”, which disclosures are set out in the report of Social Worker 1. The HSE was sufficiently concerned about the care of

Child 1 to warrant their receiving him into voluntary care and maintaining him in voluntary care for a prolonged period. He remained in

voluntary care until 25 February 2010.

10. HSE reports that it received regular updates from social workers, regarding the mother. In January and February 2010, Social

Worker 6 brought concerns to the attention of the HSE. It appears that this led to the application for the emergency care order on 26

February 2010.

11. The HSE remain sufficiently concerned about Child 1’s care to apply for interim care order and extensions of interim care order,

the latest extension due to expire on 16 July 2010 (subject to such further application as the Health Service Executive may make).

12. Child 1 has been in the care of the HSE for approximately 30 of the 39 months of his life. Contact between the mother and Child 1

has been limited while Child 1 has been in care. It is reported that at present, contact takes place once every 4–6 weeks. It is also

reported that all contact between the mother and Child 1 is supervised.

13. Child 1 has been placed with his present carers for virtually the entire of the time he has been in care. He is reported to be

“happy and settled in his current [care] placement”, and to have “formed a strong attachment to his foster family”. The HSE has

expressed the opinion that “given the dangerous nature of concerns recently relating to [the mother], as well as the progress he has

made with his foster family, it remains the view of the Social Work Department that it would be detrimental to Child 1’s development

to be moved from his placement”.

14. The guardian ad litem, in her report of 16 June 2010 states her opinion that

“[i]t would be very detrimental to [Child 1’s] wellbeing and development to suddenly separate him from his primary

attachment figures, (i.e his current carers) the people from whom he draws his sense of safety and security in the

world and the critical relationship base from which he is developing and growing and exploring the world.”

15. On the 2 March 2010, the mother received deportation orders in respect of herself and Child 1, which appear to have been made

by the Minister on 25 February 2010. The Court has been advised that neither of the deportation orders has been challenged and that

the statutory time limit for such a challenge expired in or about mid March 2010.

16. On a date prior to the 16 April 2010, the HSE lodged an application with the Minister on Child 1’s behalf pursuant to section 3(11)

of the Immigration Act 1999 requesting revocation of the deportation order. No decision has been made on that application.

17. Summary of evidence given on 17 June 2010 by the Garda Sergeant is as follows:

• Member of Gardaí, in Garda National Immigration Bureau (GNIB) since inception. Current duties to liaise with embassies and airports

regarding arrangements for and logistics of deportation.

• Approximately 300 deportations in 2009 and approximately 200 deportees were undocumented.

• When a deportation order is made, application is made by GNIB to embassy of proposed recipient country, (this

includes application for travel document/permit).

• Embassy carries out checks and indicates whether deportee will be accepted.

• When willingness to accept is confirmed, GNIB begin to arrange flights, (generally scheduled flights), and to make

“transit” arrangements (including appropriate permissions and visas to transit third countries and “hub” airports).

• If deportee is in custody, obliged to deport as soon as possible. Witness indicated this is required so as to keep

detention period as short as possible.

• Generally, it is only when embassy has actual flight details confirmed to it by GNIB that embassy issues a travel

document.

• Generally, the travel document issued is specific to a particular flight on a particular date. If the proposed

deportee does not travel on that flight and date, a further travel document must be issued by the relevant

embassy, requiring a further application by GNIB.

• Operational difficulties arise from the Order, in that it requires 7 days’ notice to the court before deportation,

when it is not possible to finalise arrangements for deportation (including issue of travel document) until 1 or 2 days

before deportation occurs.

• GNIB apply to embassy in as much time as possible.

• In reply to question as to whether GNIB could book a flight 2 or 3 weeks in advance, witness said this could be

done but GNIB still might not get confirmation from embassies or airports until a couple of days in advance. GNIB

also have to apply to airports (hub airports) for transit facilities, which may involve transit visas and other

arrangement for transiting deportees. Witness said for manpower reasons airports might not be able to confirm

arrangements until a couple of days in advance.

• Practical effect of having to give 7 days’ notice is that GNIB do not generally have (or at any rate have no way of

ensuring that they have) 7 days notice of deportation in that documents, transit visas etc often are only issued

and/or available to GNIB 1 or 2 days before deportation.

• Witness said that GNIB has a good relationship with and good level of cooperation with HSE to ensure unity of and

reunification of families. Witness said that deportation of parent(s) without child has never occurred unless child has

been placed in hiding.

• Witness said that where a child is in the care of the Health Service Executive that application would have to be

made to court before deportation could proceed.

Submissions on behalf of the Minister

18. Counsel for the Minister referred to section 47 of the Child Care 1991, and to section 5(1)(c) of the Illegal Immigrants (Trafficking)

Act 2000, particularly section 5(1)(c).

19. Counsel for the Minister referred to Western Health Board v KM [2002] 2 IR 493, in particular to the head note as to what was

held by the Supreme Court, as follows:

“[h]eld by the Supreme Court (Denham, Murphy, Murray, McGuinness and Hardiman JJ.), in dismissing the appeal and

affirming the order of the High Court, 1, that the construction of the Child Care Act, 1991, a remedial social statute,

should be approached in a purposive manner and should be construed as widely and liberally as fairly could be done.

Bank of Ireland v. Purcell [1989] I.R. 327; The Director of Public Prosecutions (Houlihan) v. P.G. [1996] 1 I.R. 281

and M.F. v. Superintendent, Ballymun Garda Station [1991] 1 I.R. 189 applied.

2. That the powers given to the District Court pursuant to s. 47 of the Child Care Act, 1991, included a power to

direct or permit the placement of a child outside the State where the evidence before the court indicated that such

a placement was truly in the best interests of the child but that such an order should be made rarely and with

considerable caution.

3. That before any order placing a child outside the State was made, the judge of the District Court, to whom such

an application had been made, should carefully weigh all relevant factors, to include, inter alia:- (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?

4. That where a child was in care pursuant to a care order under s. 18 of the Act of 1991, the District Court was

enabled to consent to the placement of the child outside the jurisdiction within the terms of s. 40 of the Adoption

Act, 1952.”

Counsel for the Minister also referred to the last 3 paragraphs on page 510 and the first paragraph on page 511 of the judgment:

“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] I.R. 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,

Hederman and McCarthy JJ. agreed) stated at p. 333:-

‘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 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, which for

many years had 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 counsel for the applicant in the

cases of The Director of Public Prosecutions (Houlihan) v. P.G. [1996] 1 I.R. 281 and M.F. v. Superintendent,

Ballymun Garda Station [1991] 1 I.R. 189.

I would therefore accept the submission of the respondent that the construction of the Act of 1991, 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 fairly can be done.

This does not, of course, imply that s. 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 means that the District Court is simply at large in the orders it

may make pursuant to the section. Counsel for the respondent is correct in laying stress on the fact that the child

in question remains in the care of the applicant pursuant to the order of the District Court made on the 22nd June,

1997. Both the applicant and the court must at all times bear that fact in mind when making any proposals for the

future care of the child.”

20. Counsel for the Minister submits that the Child Care Act ought to be given a purposive interpretation, but that the District Court is

not “at large” as to the orders it may make.

21. Counsel for the Minister referred to Mosebatho Justina Lelimo v The Minister for Justice Equality and Law Reform [2004] 2 IR 178

and in particular to the following from para 23 at page 190:

“[s]uch authority as any organ of the state has to enforce the deportation order derives solely from the deportation

order. The enforcement process cannot be severed from, and has no basis in law distinct from, the order itself.”

22. Counsel for the Minister referred to LC v Minister for Justice [2007] 2 IR 133, in particular to paragraphs [5]–[7] of the judgment

of the Supreme Court at page 155, as follows:

“5 Order 58, r. 18 of the Rules of the Superior Courts 1986 provides:-

‘An appeal to the Supreme Court shall not operate as a stay of execution or of proceedings under the

decision appealed from, except so far as the High Court or the Supreme Court may order; and no

intermediate act or proceeding shall be thereby invalidated, except so far as the High Court or the

Supreme Court may direct.’

6 In this case the ‘decision being appealed from’ is a decision of the respondent made under s. 3(11) not to revoke

a deportation order against the applicant. There is no appeal and can be no appeal from the decision of the High

Court Judge refusing relief in relation to the deportation order itself. It has been held by the High Court that the

deportation order is valid, and that finding cannot be challenged before this court. If the court were to grant an

injunction such as is being sought by the applicant, the effect would be to thwart the operation of the perfectly

valid deportation order and would, at least to some degree, prevent the operation of a perfectly valid and

unappealable High Court order.

7 There might indeed be circumstances, although it is hard to envisage them, where the Supreme Court might

exercise its inherent jurisdiction to grant an injunction which could have this effect, for example it might

conceivably be exercised when a previously unknown fact comes to light, being a fact which was unknown at the

time of making of the deportation order, and which is one of such gravity as might stay implementation of the

deportation order. No such case has been made out before us”.

23. Counsel for the Minister submitted the following:

• the validity of the deportation order in respect of Child 1 has not been challenged, and that as the time allowed

for such challenge has expired, it cannot now be challenged

• the enforcement and validity of deportation orders are inextricably linked and that a stay on the execution of the

deportation order in effect questions the validity of the deportation order, and is ultra vires for the District Court by

virtue of section 5(1)(c) of the Illegal Immigrants (Trafficking) Act 2000, and/or otherwise.

• the Order operates as a stay on the execution of the deportation order made in respect of Child 1 and/or the

Order thwarts the operation of the deportation order, and that the Child Care Act 1991 does not give the District

Court the power to make an order that has the above effect(s).

• the practical effect of the Order is that it makes the enforcement of the deportation order extremely difficult or

impossible

• one of the primary objects of the purposive approach to be taken by the District Court is reunification of the

family.

24. Counsel for the Minister agreed with the Garda witness that where a child who is the subject of a deportation order is in the care

of the HSE, that an application would have to be made to this court in any event prior to the child being deported.

25. In the course of the hearing, Counsel for the Minister confirmed that the Minister would undertake not to deport Child 1 prior to

consideration of and decision on the application for revocation of the deportation order pursuant to section 3(11) which has been

submitted to the Minister.

Submissions on behalf of the HSE

26. The HSE opposed the Minister’s application. Counsel for the HSE submitted that the Order is appropriate in the circumstances of

the case and is made within the powers of the Court, and ought not be revoked or varied. He submitted that the Order is not a stay

or injunction and that the requirement of the Order that 7 days notice be given to the court does not thwart the deportation order or

come close to making it impossible to execute the deportation order. He submitted that the evidence given did not show that it would

be impossible or even difficult to make the necessary arrangements to carry out the deportation order. He submitted that insofar as

the evidence showed that the Order might make it necessary for the GNIB to make deportation arrangements in a somewhat different

manner than usual, that the welfare of the child should not be subordinate to such matters of arrangements. He referred to the

passage already quoted from Western Health Board v KM, and submitted that section 47 is “all embracing” with regard to the orders

that this court could make in the interest of the welfare of the child. He submitted that reunification of the family is only one of many

issues in this case, and that emphasis by the Minister on reunification did not address the issues arising in this case.

Submissions on behalf of the Mother

27. The mother opposed the Minister’s application. Counsel for the mother agreed with the submissions of the HSE. He submitted that

the Order is not in fact a stay. He submitted that the court must be guided by section 24 of the Child Care Act 1991.

Submissions on behalf of the Guardian ad Litem

28. The guardian ad litem opposed the Minister’s application. Counsel for the guardian ad litem agreed with the submissions of the

counsel for the HSE and for the mother. She submitted that the order has no impact on the deportation order. She submitted that

this court has a broad range of powers, including its powers under section 47, and that this court had the power to make the Order.

Decision

29. Child 1 is a child, as defined in section 2 of the Act, in respect of who the HSE has the statutory obligations which arise under the

Act, including those which arise under sections 3, 4, 6 and 36.

30. Child 1 has a history of being in the care of the HSE. He has spent 30 of the 39 months of his life in the care of the HSE, and has

not been in the care of his mother since January 2008, some 28 months ago. While in the care of the HSE, his care has been almost

exclusively provided by his present foster carers (who have become his primary attachment figures). He has been in care because of

continuing concerns that he would otherwise not receive the care and protection he requires. He has had very limited contact with

his mother. His mother has not been, and is not at present, capable of providing the care and protection he requires, and appears to

be a danger to him. It is not clear that his mother will ever be able to provide such care and protection in the future. At present, the

HSE does not plan to return Child 1 to the care of his mother.

31. Child 1 is at present in the care of the HSE by virtue of interim care order made pursuant to section 17(2) of the Act. Section

17(1) and (2) of the Act provide as follows:

“(1) Where a justice of the District Court is satisfied on the application of a health board that—

(a) an application for a care order in respect of the child has been or is about to be made (whether or

not an emergency care order is in force), and

(b) there is reasonable cause to believe that any of the circumstances mentioned at paragraph (a), (b)

or (c) of section 18(1) exists or has existed with respect to the child and that it is necessary for the

protection of the child's health or welfare that he be placed or maintained in the care of the health

board pending the determination of the application for the care order,

the justice may make an order to be known and in this Act referred to as an "interim care order.

(2) An interim care order shall require that the child named in the order be placed or maintained in the care of the

health board—

(a) for a period not exceeding twenty eight days, or

(b) where the health board and the parent having custody of the child or person acting in loco parentis

consent, for a period exceeding twenty eight days,

and an extension or extensions of any such period may be granted (with the consent, where an extension is to

exceed twenty eight days, of the persons specified in paragraph (b)) on the application of any of the parties if the

justice is satisfied that grounds for the making of an interim care order continue to exist with respect to the child.”

The circumstances mentioned at paragraph (a), (b) or (c) of section 18(1) are:

“(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”.

32. When considering whether to make an order pursuant to section 17, the matters to be considered are those set out in section

17(1). The court must also have regard to section 24 of the Act which provides:

“[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…”

33. It appears that the existence of the deportation order in respect of Child 1 was not known to the Court or any of the parties on

26 February 2010, when the emergency care order was made. It further appears that the existence of the deportation orders was not

made known to the court on 5 March 2010.

34. On 16 April 2010, I heard an application for an extension of the interim care order, and made an order pursuant to section 17(2).

The HSE solicitor told the court that application had been made to the Minister pursuant to section 3(11) of the Immigration Act 1999

for revocation of the deportation order relating to Child 1, that the Minister had been requested to furnish an undertaking not to

proceed with the deportation order pending consideration of the application to revoke, and that no such undertaking had been

received. Therefore, Child 1 was liable to deportation forthwith. I was concerned about the effect that execution of the deportation

order might have on the welfare of Child 1 in circumstances where he had been in the care of the HSE for a long time and where

removal from this jurisdiction would remove him from the care of his present foster carers with whom he had resided for a considerable

period and with whom he was very likely to have formed a significant bond. The HSE indicated that it shared such concerns. In those

circumstances, in the interests of the welfare of the child, I made the Order, pursuant to section 47 of the Act, that Child 1 not be

removed from the jurisdiction of the Court without 7 days’ prior notice to the Court.

35. Since 16 April 2010, further reports have been furnished to the court and I have considered the contents of those reports.

Further evidence has been heard, and I have also considered that. I also note the Minister’s undertaking, given on 17 June 2010, not

to deport Child 1 pending his decision on the application to revoke the deportation order.

36. Section 47 of the Act provides that:

“[w]here a child is in the care of the Health Service Executive, 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.”

37. I refer to the passages quoted from Western Health Board v KM. I accept the submission that “the construction of the Act of

1991, 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 fairly can be done” but that the District Court is not “at large” as to the orders it may make. At page 511 of

the judgement in Western Health Board v KM, at the beginning of the third paragraph, McGuinness J stated that “there is a scarcity

of authority on the interpretation of s47 of the Act”. That remains the situation some 8 years later — no more recent authorities were

opened.

At the end of that paragraph, McGuinness J refers to the judgment of McCracken J in Eastern Health Board v McDonnell [1999] 1 IR

174. In that judgment, McCracken J stated at page 184:

“[i]n my view s47 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.”

38. The power conferred by the Act on the District Court to make an order under section 47 of the Act is exercisable when there

exists “any question affecting the welfare” of a child in care.

39. Having regard to words of the section, the purposive approach to the construction of the Act approved of in Western Health

Board v KM, the role of the District Court as described in Eastern Health Board v McDonnell, and the statement in that case that the

section is “not qualified in any way”, I am of the view that the power conferred by the Act on the District Court to make an order

under section 47 of the Act is exercisable when there exists “any question affecting the welfare” (emphasis added) of a child in care.

It is my view that the power is not confined to acts of the HSE which affect the welfare of the child in care. Further, it is my view

that the power is not excluded by the fact that the question affecting the welfare of the child in care arises from a proposed action

by a person or body other than the HSE (in this case, the Minister), nor is it excluded by the fact that the question affecting the

welfare of the child in care arises from a proposed action (in this case, deportation) which is to be carried out on foot of a valid order

and is within the powers of the person or body carrying it out.

40. However, it might occur, a radical change in the care arrangements for a child who is in the care of the HSE, in my view, is, or

gives rise to, a “question affecting the welfare of the child”. Therefore “a question affecting the welfare” of Child 1 exists or arises in

this case and therefore that the court has the power to make an order under section 47.

41. Insofar as the power to make an order under section 47 of the Act is discretionary, I am of the view that such discretion must be

exercised having regard to the welfare of the child as the first and paramount consideration, as set out in section 24 of the Act.

Insofar as an order under section 47 must be such as the Court thinks is proper, I am of the view that the Court must make such

order as it thinks proper having regard to the welfare of the child as the first and paramount consideration as set out in section 24 of

the Act.

42. Child 1 has been in the continuous care of the HSE for a period or in excess of 28 months, the HSE are of the view that his

mother is not at present capable of providing him with proper care, and the HSE have no plan at present to reunify Child 1 and the

mother. Such a radical (and sudden) change of the care arrangements for Child 1 as would occur on the immediate execution of a

deportation order could be extremely traumatic and potentially very damaging for Child 1, in particular by virtue of the fact that he

has been in the care of the same foster family for a prolonged period and must have formed strong bonds with them. Quite apart from

the potential adverse effect of unmanaged removal from his present carers, immediate deportation may also involve either (i) the child

being placed back in his mother’s care in the course of the deportation process, which on the basis of all of the reports and evidence

heard would not be in the interests of the child’s welfare; or (ii) the child would not be placed in the care of his mother in the course

of deportation, but would be deported to Country 1 without any evidence of the care (if any) available to him there (including but not

limited to whether he would be returned to the care of his mother), which would not be in the interests of the child. In light of all of

these circumstances, I am of the view that this court ought to exercise its discretion under section 47, in the interests of the welfare

of the child, and make the Order.

43. I am of the view that the proper order to make is one that does what the Court thinks is necessary, and no more than is

necessary, to protect the welfare of the child in care, (bearing in mind the Court’s present state of knowledge and bearing in mind

that the proceedings constitute an on-going inquiry). Therefore, I have made a limited order, which is intended to give the parties to

the proceedings, in the interests of the welfare of the child in care, the opportunity to consider the potential effect of the proposed

action in the specific circumstances of the case (as they exist at the date notice is given), and to consider the steps that they may

wish to take (including but not limited to application for other order(s) pursuant to section 47).

44. Howsoever it is described, the Order does have the affect of delaying the execution of the deportation order, albeit for a short

period, and for a specific purpose.

45. I refer to the submission that the Order challenges the validity of the deportation order made in respect of Child 1, and the

passage quoted from Mosebatho Justina Lelimo v The Minister for Justice Equality and Law Reform. I refer also to the passage

quoted from LC v Minister for Justice and to the submission that the Order operates as a stay on the execution of the deportation

order made in respect of Child 1 and/or the Order thwarts the operation of the deportation order, and that the Act does not give the

District Court the power to make an order that has the above effect(s).

46. Neither Lelimo nor LC concerned a child in the care of the HSE, and in those cases no question arose or could have arisen under

section 47 of the Child Care Act 1991. In both Lelimo and LC, the applicants/appellants had received deportation orders that they

sought to challenge, and the orders sought by them were sought by them in the context of the proceedings bringing such a

challenge. In this case, no challenge is made to the deportation order, no question arises as to the validity of the deportation order

and no such challenge or question could be made or raised in this Court. It is my view that the passage quoted from Lelimo should be

considered in the context of that case, as refuting the contention of the applicant in that case that by severing the enforcement

process from the order, she could challenge the validity of their deportation order pursuant to the European Convention on Human

Rights Act 2003 by reference to the date of enforcement of the deportation order rather that the date on which the deportation

order had been made. No contention of that nature is made in this case.

47. The power to make the Order arises from section 47 of the Act, and the power is exercised and can only be exercised in

accordance with that statute. While the effect of the Order may resemble the effect of some of the reliefs sought (and refused) in

Lelimo and LC, in my view, the coincidence of the effect of the Order and the effect that the relief sought and refused in unrelated

matters might have had does not exclude this Court from making the Order.

48. With regard to the submission that the practical effect of the Order is that it makes the enforcement of the deportation order

extremely difficult or impossible, I do not accept that this is the case. The evidence of the GNIB, while establishing that the Order

might make it somewhat more difficult to enforce the deportation order that would otherwise be the case, does not in my view

establish that the degree of difficulty is such that enforcement becomes extremely difficult or impossible. Any additional difficulty as

there may be is not sufficient to require the setting aside of the interests of the welfare of the child which the Order seeks to

protect. I would point out at this stage that while the Order requires 7 days’ notice or removal of Child 1 from the jurisdiction it does

not require that such notice expire on the date on which Child 1 is to be removed. For example, if the required notice were given to

the court on 1 August 2010 that it was intended to remove Child 1 from the jurisdiction on or after the 8 August, that would comply

with the Order.

49. With regard to the submission that one of the primary objects of the purposive approach to be taken by the District Court in

implementing the Act is reunification of the family, I agree fully with this. I note in particular the provisions of section 3(c) of the Act.

Reunification is however not an end in itself, rather it is an outcome to be desired and promoted provided it is in the interests of the

welfare of the child. In all cases where a child has formed with its carers a bond of the type described in the passage quoted from the

guardian ad litem’s report, then even when reunification has been found to be in the interests of the welfare of the child, great care

is required in managing such reunification lest avoidable damage and trauma are caused. Furthermore, in this case, it has not been

found that reunification would be in the interests of the child — that is a matter for further consideration in the on-going inquiry.

What is clear is that immediate reunification is not thought by the HSE to be in his interest, and their view is supported by the

available reports.

50. Counsel for the Minister further submitted that this Court must act within the Constitution, and in that regard must consider such

matters as the common good. No submissions have been made as to how the Order might affect the common good or other rights

that might arise. In any event I am of the view that the Order sufficiently balances the rights of the child in this matter and such

other constitutional rights as arise.

51. A number of things have occurred since the 16 April 2010, the date the order was made: the Minister has become a notice party,

the mother was secured representation, and a guardian ad litem has been appointed for Child 1. On 17 June 2010, in the course of

the hearing, the Minister gave an undertaking that Child 1 would not be deported prior to his decision on Child 1’s application for

revocation of the deportation order. Also on 17 June 2010, the Minister stated that regardless of whether the Order is in place or not,

the Minister would make further application to this Court before executing the deportation order (assuming that a care order

continues to exist). These maters go a considerable way towards addressing the concerns that led to the making of the Order.

Nevertheless, matters remain in a state of flux — e.g. the mother’s health, Child 1’s on-going placement and development of

relationships with his present carers, and the decision regarding revocation of the existing deportation order — these matters and

their interrelationship all give rise to questions that affect the welfare of Child 1. Because of this, I am of the view that an order

should still be made.

52. If the Minister confirms that Child 1 will not be removed from the jurisdiction without further application to the Court (presumably

such application would be pursuant to section 22 or section 47 of the Act), then I think the proper order of the Court should be that

such application should be made on seven days’ notice. (In this regard, the District Court rules already provide that applications under

section 22 for revocation of a care order must be brought on seven days’ notice). Otherwise, I am of the view that in all the

circumstances of this case the Order should remain in place.