District Court dismisses GAL's Section 47 application to return deported mother due to her non-compliance with Minister's directions.

[2010] IEDC 7

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

KA

RESPONDENT

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1

10 November 2010

1. The Application before this Court is moved by the Guardian ad litem (“GAL”) of the child pursuant to section 47 of the Child Care

Act 1991 seeking an Order from this Court permitting and facilitating the return of the child’s mother who has been deported pursuant

to a Deportation Order signed by the Minister for Justice, Equality and Law Reform. The Application was hotly contested by the

Minister; the HSE took a neutral position and informed the Court that it would carry out any direction it received from the Court but

that a passive as opposed to an active role was being observed in this matter. The Applicant for the purpose of the section 47

Motion, namely the GAL, was represented by counsel; Chid 1’s mother was represented by counsel; the HSE was represented by

counsel; and the Minister for Justice, Equality and Law Reform was represented by counsel. Written Submissions were received from

all parties save the HSE, the latter exercising a watching brief in respect of the section 47 application.

2. So as to allay any confusion that can be caused in this matter, throughout this decision I refer to the Guardian ad litem, as the

Applicant, because she is the person moving the section 47 Motion (confusion could arise because the title of the case has the HSE

as the applicant).

3. I do not believe that a complete and discursive account of the background to this case would assist this Court in reaching its

decision and accordingly I shall deal only with the relevant matters of an historical nature touching upon the application as other

matters will not nor do not influence the Application one way or the other.

4. Child 1, the subject of the care proceedings, is four years of age, was born in Ireland, and before now he has never been

separated from his mother prior to his reception into care on 16 August. The GAL furnished a report to this Court supporting her

Application and the seminal portions state that the separation of the child from his mother was traumatic and distressing but that his

placement is comfortable and homely with a large number of appropriate toys to play with and that he is extremely well cared for. The

GAL, states that Child 1’s foster carer is attentive and loving and she has observed Child 1 seeking and giving hugs to her.

5. The GAL has also outlined what she believes to be the plight of the mother in this case and her present status and circumstances

in Country 1. The Minister does not accept this version in that a Detective Sergeant from the Garda National Immigration Bureau did

make telephone contact with the mother and he formed the opinion that the mother’s circumstances are not as dire as those

articulated by the GAL. The GAL states in her report of 26 October last (the HSE also submitted an update report dated 27 October)

that:

“the mother’s parents informed me that the mother has no money. I am informed by both that the mother has to

beg for food and that there are days when the mother has been unable to eat … Occasionally her father is able to

get small amounts of money to the mother which she uses for telephone calls. Her father informs me that the

mother is living in an area that is alien to her. He states that she has no friends or supports there … the mother

informs me that she cannot allow Child 1 to be returned to Country 1. She has said that she will not be able to feed

him and that he is in danger and has no future. The mother is supported in her position by her father who has also

advised that Child 1 will be in danger in Country 1, will have no future and that to return him would be akin to

‘throwing him into the mouth of a lion.’”

6. I cannot think of a more worthy case that would or could test the limits or boundaries of the powers of this Court under section 47

of the Child Care Act, 1991 and accordingly I will try my best to reach a decision which is proper, fair, and just having regard to all

the circumstances of the matter.

7. Two Deportation Orders pursuant to the Immigration Act, 1999 are in existence in respect of the mother and Child 1 and copies of

same have been furnished to this Court. Also, this Court has had sight of the minutes of the Examination of File pursuant to section 3

of the Immigration Act, 1999.

8. The said Examination of File in respect of the ‘consideration of the child born in Ireland’ states that:

“[t]he child in this case, Child 1, was born on [date given] and under the Irish Nationality and Citizenship Act, 2004

which came into force on 01/01/2005 is not an Irish Citizen. It must be borne in mind that, even if the child were an

Irish citizen, the judgment in the Supreme Court in the L & O case (sic) makes it clear that there is no absolute

right for a child to have the care and company of its parents in Ireland – this can take place abroad. Further, it

cannot be said as a matter of law that the parents of a minor can assert a choice to reside in the State on behalf

of a minor, even if that could be said to be in the interests of the minor. Thus children can return to countries

which would have inferior welfare and health services to those available in Ireland. This is not, in itself, a basis for

allowing them to remain here. The fact that, in this instance, the child is not an Irish Citizen lends further weight to

the conclusion that deporting the parents, along with the child, is not contrary to our national or international

obligations…The principal issue to be considered in this case is that of the citizenship of the child born in the State

on 21/08/2005…Having considered the facts of this case and taking into account the above I am satisfied that

although the mother’s son was born in the island of Ireland he does not qualify for citizenship of this State.”

9. Firstly, I must say that the phraseology used, in this extract and in the Examination in the main, is insensitive and borders on

tactless. Secondly, the principal issue to be considered is the entitlement to reside in this state not that of citizenship of the child

born. Thirdly, a determination of citizenship has been made by a the Executive Officer of the Repatriation Unit, in respect of this child

on the purported exercise of the Irish Nationality and Citizen Act, 1956 as amended by the Irish Nationality and Citizenship Act, 2004

(section 6A) but my understanding is that qualification and/or application for citizenship is a matter for the Minister for Justice,

Equality and Law Reform and not an official from the Repatriation Unit: see Mishra v Minister for Justice [1996] 1 IR 189.

10. The GAL maintains that the mother was arrested on 15 August last and was, following arrest, conveyed to the prison. This prison

does not have detention facilities for the child and consequently, the Garda had to execute his powers under section 12 of the Act of

1991 to secure care for the child who became subject of an Emergency Care Order pursuant to section 13 of the said Act on 17

August last and then subject of an Interim Care Order pursuant to section 17 on 24 August 2009. Moreover, by executing section 12

and Emergency and Interim Care Orders following the threshold criteria of section 18(1) come into play which means that the Minister

cannot, no longer, rely upon the proposition that “[t]hus children can return to countries which would have inferior welfare and health

services to those available in Ireland.”

11. An Application to lift the Interim Care Order was made on 1 September 2009 to allow mother and son be deported but the

Application was refused by this Court. Other than the imprisonment of the mother and the fact that no relatives of the mother or child

live in this country, an Order of this Court was made to protect and safeguard the child and suffice to say there are no concerns in

relation to parenting or the development or welfare of this child prior to the said incarceration.

12. The GAL, in page two of her submissions states, et sequentia, that

“the District Court ought to direct that the Respondent (the mother) be permitted to return to the State and have

a period of reunification in this State to re-establish the bonds between the mother and child. These bonds have

been damaged by the separation of the mother and child, who has suffered considerable distress from the

separation. Thereafter, when the child’s welfare is satisfied, their continued presence in the State is for the Minister

for Justice … to determine.”

13. Bye the bye, I say that matters in relation to the Deportation Order at page three of the GAL’s submissions are not open to this

Court for scrutiny in relation to the alleged unlawfulness of the enforcement of the Order made.

14. The GAL laid emphasise upon section 24 of the Child Care Act, 1991 which provides that:

“[i]n any proceedings before a court under this Act in relation to the care and protection of a child, the court,

having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

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

(b) in so far as is practicable, give due consideration, having regard to his age and understanding, to

the wishes of the child.”

15. Also, the GAL relies upon the provisions of section 3(2)(c) of the 1991 Act which provide that the Court must “have regard to the

principle that it is generally in the best interests of a child to be brought up in his own family.”

16. Section 47 of the Child Care Act provides that:

“[w]here a child is in the care of a health board, the District Court may, of its own motion or on the application of

any person, give such directions and make such order on any question affecting the welfare of the child as it thinks

proper and may vary or discharge any such direction or order”.

17. Counsel for the GAL quoted extensively from the case of Eastern Health Board v McDonnell [1999] 1 IR 174, and rightly so, and he

stated that at page 183 of that judgment, the High Court held that:

“[i]t is the function of the courts, and not of local authorities or health boards, to ensure that the constitutional

guarantees given to an individual are upheld. Therefore, where the welfare of a citizen, and in particular of a child

who is in need, is concerned, there would have to be a very clear delegation of powers if the obligation is to be

imposed upon somebody other than the courts.”

18. At page 184 to 185, the High Court stated that:

“[s]ection 24, which is the general provision giving jurisdiction to the court, clearly provides that the court shall

have regard to the welfare of the child as the first and paramount consideration. This is not qualified in any way,

and seems to me to place an obligation on the court in dealing with proceedings under the Act which cannot be

passed on or delegated to a health board, notwithstanding the fact that a health board is under the same strictures

pursuant to section 3(2). This latter provision simply confirms that a health board, in carrying out its functions,

must also have regard primarily to the welfare of the child.

Quite apart from the general provision, s. 47 of the Act gives an extremely wide jurisdiction to the District Court.

Unlike s. 24, this is not limited to cases where there are proceedings before the court, but rather to situations

where the child is already in the care of a health board. This jurisdiction may be exercised by the court on its own

motion or on the application of any person, which of course would include the notice parties in this case. A

somewhat farcical situation therefore, could arise if I declare that the respondent had no power to impose these

directions, in that the notice parties could apply tomorrow under s. 47 to the respondent to make exactly the same

directions. It is not credible that the respondent should not be entitled to impose directions when making the care

order, but would be entitled to do so on a new application the next day.

In my view s. 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 s. 47 is that it is intended to give the overall control of children in care to the District

Court. This is not to say that the District Court should interfere in all day to day decisions made by a health board,

but rather that whenever any matters of concern are brought to the attention of the District Court, which could

reasonably be considered adversely to affect the welfare of the child, and only in such circumstances, should the

District Court interfere. Having read the decision of the respondent in both the cases before me, I am quite satisfied

that he had ample grounds upon which to intervene or impose conditions on the making of the care order, although

that is not strictly the question before me.”

19. Counsel for the GAL mentioned a further case on point, namely Western Health Board v KM [2002] 2 IR 493 wherein McGuinness J

at page 512 stated that she “would in the main share the views of both judges as to the construction of the section.” I must point

out also that McCracken J said that he was quite satisfied as to the exercise of section 47 which means that he had no doubt that

the powers under that section to intervene and impose conditions were appropriate and exercised properly.

20. In his submissions, counsel for the GAL quotes McGuinness J. and relies upon the following propositions of law where McGuinness J

stated:

“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 … 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 … 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.”

21. Counsel for the GAL went on to apply decisions in respect of the European Convention on Human Rights, but I do not feel that

they add any significant weight to the argument before this Court which is whether or not section 47 will permit me to make an Order

facilitating the return of the mother in this case. I have read and considered the cases relied upon and I am convinced that they do

not assist me in the instant matter.

22. Counsel on behalf of the Respondent mother, adopted much of the submissions of the GAL and he also placed some emphasise

upon certain aspects of the European Convention of Human Rights, but as I have said I do not think that these authorities are helpful

in respect of charting the boundaries or otherwise of section 47 of the Act of 1991 but rather look at the fairness of procedures in

regard to certain matters.

23. Turning to the submissions on behalf of the Minister, I could find little difference in the substantive points already made by

opposing Counsels other than the following proposition at paragraph 2.7 of the Minister’s submissions:

“it is respectfully submitted that the District Court does not have jurisdiction under section 47 of the 1991 Act to

make an Order or a Direction to the Minister to provide for the reunification of the mother and child in Ireland. This

would have the effect of thwarting the validity and the execution of the deportation order made validly under the

Immigration Act, 1999.”

24. Firstly, I cannot accept this proposition because reunification and deportation are two separate issues and cannot be looked at as

one following on from the other. It is without doubt that this Court can look at “reunification of the mother and child in Ireland” within

the provisions of the Act of 1991 amongst other matters and no authority has been opened to this Court to say otherwise. Secondly,

no authority or argument was proffered to support such a bald statement which I believe is wrong and I will explain why a little later.

25. The statement by the Minister that “The District Court has control over the care of the child but does not and cannot have

control over the mother’s whereabouts or movements,” displays a misinterpretation of this piece of legislation; its function and

powers, in respect of a child or children afforded protection under this piece of legislation. The purpose of the legislation was,

according to Paul Ward in his Annotation of the Child Care Act, 1991, as follows:

“to provide a means by which the welfare and protection of children can be safeguarded. In extreme circumstances

the Act authorises the interference with familial relations whereby a child can be removed from the care, custody

and authority of his parents and delivered into the care of the State Agency, namely the health board. Interference

with fundamental constitutional rights, the rights of the family under Article 41, is made legally permissible by Article

42.5 of the Constitution, which authorises the State to intervene on behalf of children where parents have failed for

physical or moral reasons in their duty towards their children. In this regard, the application for any Order under the

Act requires the Court to consider both the rights of parents under the Constitution and otherwise and the welfare

of the child. This express statutory obligation safeguards the rights of all concerned. In addition, health boards are

likewise obliged to consider the above rights in relation to parents and children in the exercise of any of their

functions under the Act.”

26. The fact that the child in this case is not an Irish citizen does not diminish his rights and entitlements pursuant to the Child Care

Act, 1991. I do not believe that I need to expand upon this point in relation to the 1991 Act as it can stand alone as a protective

measure for children within the meaning of the Act.

27. Child 1, who is under the care of the HSE by virtue of an Interim Care Order, is subject to that by reason of the arrest and

incarceration of his mother and the subsequent deportation of the mother. It was submitted by counsel for the GAL that such a

deportation ought not to have taken place because deportation was to encompass both mother and son. However, I cannot accept

this proposition of the GAL and I feel that the Supreme Court, per Hardiman J, rejected such a contention in the case of P v Minister

for Justice [2002] 1 ILRM 16, wherein it was contended that the State’s duty to protect the married family precluded the Minister for

Justice from deciding to deport an alien while his wife’s application for leave to remain in the jurisdiction was pending and this was

rejected by the Supreme Court.

28. I must look at the provisions of section 47 carefully in order to decide if I have jurisdiction to make an Order directing the return

of the mother. In this regard, it is necessary for me to recite section 47 once more, namely the section provides that:

“[w]here a child is in the care of a health board, the District Court may, of its own motion or on the application of

any person, give such directions and make such order on any question affecting the welfare of the child as it thinks

proper and may vary or discharge any such direction or order.”

29. There are two criteria to satisfy before section 47 can be exercised. Firstly, the child must be in the care of the HSE and

secondly, the directions or order must be contingent upon ‘any question affecting the welfare of the child.’ The first criterion is

satisfied in that the child has been place under an interim care order. It is now necessary to look and consider the second criterion.

30. In interpreting the second criterion of section 47, the Minister, and in my opinion, convincingly so, stated that section 47 should

be approached in a purposive manner as laid down by the case of Western Health Board v KM [2002] 2 IR 493, at pages 510 and 511.

Clearly, the purpose and object of the section in the instant matter has to be looked at. In that framework, I must interpret the

actual words of the second criterion. Accordingly, the criterion that the direction or order must be contingent upon ‘any question’ is

different to that of ‘all questions.’ If we substitute the word ‘all’ for ‘any’ both words being adjectives, we can see that the word ‘all’

would have no limits. Therefore, the use of the adjective ‘any’ (as opposed to the pronoun) clearly demonstrates that not all

questions affecting the welfare of the child will permit this Court to exercise its powers pursuant to section 47. That in itself is a

boundary and authority for this is based upon the distinctions set out in The Oxford English Dictionary, 2nd edn., Vol. I (reprint (with

corrections)) 1991.

31. At paragraph 20 above, I quoted McGuinness J’s caution in relation to exercising the very wide powers under section 47, namely

that “[t]his 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” but in spite of this the Court must retain some power to reverse, in certain cases, a ministerial decision, if that decision

directly affects the welfare of the child, and that such decision is contrary to the health of the child, notwithstanding that the

Minister has the power to make such orders or decisions.

32. In the instant matter, the child is under an Interim Care Order because of the imprisonment of his mother following her arrest. The

very matter which gave rise to the emergency care order and the section 12 invocation was not the deportation but rather the arrest

and imprisonment of the mother because of her breach and non-compliance with section 3(9)(a)(i) of the Immigration Act 1999, as

amended.

33. The GAL states that I have the power to reverse the deportation by making an Order directing the mother’s return because the

circumstances of the separation is affecting the welfare of the child. The arrest, detention, and deportation were proper and lawful.

Thus, the mother was the author of the present state of affairs which the child finds himself in. I can certainly understand why the

mother took the course of action she did in not complying with the Minister’s directions and I empathise with the situation she now

finds herself in, but this Court must be slow to interfere with executive decisions which are open to review by the High Court, and any

such interference warranted by this Court pursuant to section 47 must be within the “context in the general framework of the Act.” If

I had such powers as the Guardian maintains, this Court would be at large to reverse and invalidate legitimate decisions of the

Executive and would have the power to reverse and overturn Orders of the Superior Courts which impinge upon the welfare of the

child. I do not think that the legislature contemplated placing such a power in the District Court; for example, a mother who has been

sentence to life in prison for murder could be set at large because her separation from her children is such as to warrant same. This, I

cannot accept.

34. The separation of mother and son was as a result of acts of the mother in not complying with the Directions of the Minister and

thus this Court has no power to excuse such non-compliance. Had the Minister sourced appropriate and secure accommodation for

mother and child, a separation would not have happened; but, given that an arrest ensued from the non-compliance such an option

was not open to the Minister, although the Minister did suggest that should the mother agree to a voluntary care arrangement

pursuant to section 4 of the Child Care Act 1991, the child, Child 1, would not have been placed in care. A section 4 arrangement

cannot be imposed but rather agreement is sought.

35. Accordingly, I find that I am powerless in respect of the GAL’s Application notwithstanding the circumstances in which this mother

finds herself in. I, therefore, must decline and refuse the Application. I am conscious also, having considered the matter in detail, that

a ramification could ensue or in the alternative, a risk or potential risk would be manifested by the return of the mother on a section

47 Direction; mother would return, reunification would ensue, both mother and child would be validly and lawfully deported,

occurrences which run contrary to the spirit of the Act of 1991.

36. I feel that we have some work ahead of us in trying to resolve the problem of the separation of mother and child. Presently, the

mother is in some difficulty there is no doubt about that. Whilst the child is in the care of the HSE, this Court is obliged to seek to

secure such circumstances as will facilitate reunification. Hence, we must see if we can bring about that situation. A situation which

would allay the fears or concerns set out in section 18(1) of the Act, would be if the mother was to secure employment, a proper

residence, be capable of providing the basic necessities to Child 1. If the mother had a source of income, relief would be acquired and

a reunification could be contemplated. In order to achieve this, the GAL or a social worker or both would have to take a trip to

Country 1 to see if this is possible. The authorities in Country 1 would be placed on Notice of our intentions to assist the mother in

relation to reunification means that she is more attractive to the workforce and secondly that no harm would come to either of them

given the knowledge of this State’s involvement. This is a matter for another day but exploring such an option demonstrates to the

mother that the Minister was correct in his decision and that this State is not insensitive to the plight of the mother.

37. One further matter remains for me to consider as a result of this decision. Given that the Child is under an Interim Care Order, and

that this Court has ultimate responsibility for the welfare, safety, and protection of this child, this Court has power to make an Order

directing the Minister in question to rescind and/or revoke the Deportation Order in respect of the child because the existence of such

an order clearly affects the welfare of the child and limits the powers of this court in respect of the care and attention of Child 1.

38. That concludes the decision of this Court.