Court grants interim care order under Section 17 due to risks of voluntary care withdrawal, adjourning Section 43A application.

[2012] IEDC 14

AN CHUIRT DUICHE THE DISTRICT COURT

M

APPLICANT

-AND-

F&C

RESPONDENTS

CHILD CARE ACT 1991, SECTION 43A

IN THE MATTER OF CHILD 1

R

APPLICANT

-AND-

F&C

RESPONDENTS

CHILD CARE ACT 1991, SECTION 43A

IN THE MATTER OF CHILD 2

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

F&C

RESPONDENTS

CHILD CARE ACT 1991, SECTION 17

IN THE MATTER OF CHILD 1 AND CHILD 2

18 September 2012

1. These proceedings concern Child 1, who has recently turned 14, and Child 2, who will shortly turn 13.

2. A few days after being born, Child 1 was placed in the foster care of M, and has remained in M’s care since that date.

3. A few days after being born, Child 2 was placed in the foster care of R, and has remained in R’s care since that date.

4. On 4 July 2012, each of the foster carers issued applications under section 43A of the Child Care Act 1991 (the Act), in respect of

the child/young person in their care. Each application was accompanied by a copy of consent of the HSE to the making of an order

under section 43A. Hereafter, I refer to these applications collectively as “the section 43A application”.

5. The section 43A application was initially returnable to 11 July 2012 in this Court; it was adjourned to 31 July 2012 and, on 31 July

2012, was adjourned to 5 September 2012.

6. Although not a party to the section 43A application, the HSE has been legally represented on each occasion the section 43A

application was listed.

7. On 11 July and 31 July 2012, the section 43A application did not proceed, owing to doubts and difficulties then existing regarding

service of the section 43A application on the mother.

8. During August 2012 (and with the permission of her treating clinician), the section 43A application was served on the mother.

Service was effected personally by the solicitor for the applicant foster carers.

9. I am satisfied from what has been submitted by the solicitor for the applicant foster carers, and from the evidence of Dr OR

(consultant psychiatrist) that while service was being effected, mother stated that:

• she wanted the care of her children to be returned to her;

• she had never agreed to her children going into care; and

• she had been forced to sign a voluntary care agreement in respect of the children.

10. On 5 September 2012, the HSE issued applications for Interim Care Orders in respect of each of the children (hereafter

collectively referred to as the section 17(1) application), returnable to 18 September 2012.

11. On 5 September 2012, the section 43A application was adjourned to 18 September 2012.

12. On 18 September 2012, the section 17(1) application proceeded to hearing. Mother was not present, but was legally represented.

Father was not present or legally represented. Evidence was given by Social Worker 1, who also submitted a social work report dated

17 September 2012, and by mother’s consultant psychiatrist, who submitted a report dated 17 September 2012. Interim Care Orders

were made in respect of each of the children, to expire on 16 October 2012.

13. On 18 September 2012, the section 43A application was adjourned to 16 October 2012.

14. On 25 September 2012, the HSE issued applications for an extension of the Interim Care Orders in respect of each of the children

(hereafter collectively referred to as the section 17(2) application), returnable to 16 October 2012.

15. I have heard all of the applications in this case.

16. Section 4 of the Act provides as follows:

‘(1) Where it appears to the Health Service Executive that a child requires care or protection that he is unlikely to

receive unless he is taken into its care, it shall be the duty of the Executive to take him into its care under this

section.

(2) Without prejudice to the provisions of Parts III, IV and VI , nothing in this section shall authorise the Health

Service Executive to take a child into its care against the wishes of a parent having custody of him or of any

person acting in loco parentis or to maintain him in its care under this section if that parent or any such person

wishes to resume care of him.

(3) Where the Health Service Executive has taken a child into its care under this section, it shall be the duty of the

Executive

(a) subject to the provisions of this section , to maintain the child in its care so long as his welfare

appears to the Executive to require it and while he remains a child, and

(b) to have regard to the wishes of a parent having custody of him or of any person acting in loco

parentis in the provision of such care.

(4) Without prejudice to the provisions of Parts III, IV and VI , where the Health Service Executive takes a child

into its care because it appears that he is lost or that a parent having custody of him is missing or that he has been

deserted or abandoned, the board shall endeavour to reunite him with that parent where this appears to the

Executive to be in his best interests.

(5) …’

17. Section 16 of the Act provides as follows:

‘[w]here it appears to the Health Service Executive that a child 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

Executive to make application for a care order or a supervision order, as it thinks fit.’

18. Section 17 of the Act provides as follows:

‘(1) Where a justice of the District Court is satisfied on the application of the Health Service Executive 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 Executive

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 Service Executive—

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

(b) where the Health Service Executive 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 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.

(3) An application for an interim care order or for an extension of such an order shall be made on notice to a parent

having custody of the child or to a person acting in loco parentis except where, having regard to the interests of

justice or the welfare of the child, the justice otherwise directs.

(4) Where an interim care order is made, the justice may order that any directions given under subsection (7) of

section 13 may remain in force subject to such variations, if any, as he may see fit to make or the justice may give

directions in relation to any of the matters mentioned in the said subsection and the provisions of that section shall

apply with any necessary modifications.’

19. Section 43A of the Act provides as follows:

‘(1) This section applies to a child in the care of the Health Service Executive whether in care under section 4 or

under section 18 and whether the child has been placed under section 36(1)(a ) with a foster parent or under

section 36(1)(d ) with a relative.

(2) On the application of a foster parent or relative with whom the child has been placed, the court may grant an

order under this section, but only if it is satisfied that—

(a) the foster parent or relative has been taking care of the child for a period of not less than five years

beginning on the date of placement in accordance with this Act and ending on the date of application,

(b) the granting of the order is in the child’s best interests,

(c) the Health Service Executive has consented in advance to the granting of the order,

(d) the Health Service Executive has, on behalf of the foster parent or relative—

(i) if the child is in its care under section 4 , obtained the consent to the granting of the order of

a parent having custody of the child at the relevant time or of a person (other than the foster

parent or relative) acting in loco parentis to the child, or

(ii) if the child is in its care under section 18 , given notice of the application to a parent having

custody of the child at the relevant time or of a person (other than the foster parent or relative)

acting in loco parentis to the child, and

(e) the child’s wishes have, in so far as is practicable, been given due consideration having regard to

the age and understanding of the child.

(3) In determining whether a foster parent or relative has been taking care of a child for the period required by

subsection (2)(a ) , any interruption of the placement during that period shall be disregarded unless the total

number of days of interruption, whether consecutive or not, exceeds 30.

(4) The requirement of subsection (2)(d ) as to the consent or notification of a parent or other person does not

apply if—

(a) the court is satisfied that he or she is missing and cannot be found by the Health Service Executive,

or

(b) the court, having regard to the child’s welfare, so directs.

(5) Subject to any conditions or restrictions imposed under subsection (6), an order under this section shall

authorise the foster parent or relative to whom it is granted—

(a) to have, on behalf of the Health Service Executive, the like control over the child as if the foster

parent or relative were the child’s parent, and

(b) to do, on behalf of the Health Service Executive, what is reasonable (subject to the provisions of

this Act and of the regulations for the time being in force under this Act) in all the circumstances of the

case for the purpose of safeguarding and promoting the child’s health, development or welfare and, in

particular, give consent to—

(i) any necessary medical or psychiatric examination, treatment or assessment with respect to

the child, and

(ii) the issue of a passport to, or the provision of passport facilities for, the child to enable the

child to travel abroad for a limited period.

(6) In granting the order, the court may impose any conditions or restrictions it thinks fit as to the extent of the

authority of the foster parent or relative to whom the order is granted.

(7) Any consent given by a foster parent or relative of the child in accordance with an order under this section shall

be sufficient authority for the carrying out of a medical or psychiatric examination or assessment, the provision of

medical or psychiatric treatment, the issue of a passport or the provision of passport facilities, as the case may be.

(8) In the absence of a consent referred to in subsection (5) being given by the foster parent or relative to whom

an order under this section was granted, the Health Service Executive has authority to give consent in accordance

with section 18(3) in relation to the child.

(9) Nothing in this section or section 18 shall be construed as making ineffective any consent that, by virtue of

section 23 of the Non-Fatal Offences Against the Person Act 1997, would otherwise be an effective consent.

(10) Any arrangement that is in place or order that is in force under section 37 with respect to access to the child

immediately before an order under this section is granted continues in place or in force, unless when granting the

order—

(a) in the case of an arrangement under subsection (1) of section 37 , the court makes an order under

subsection (2) of that section, or

(b) in the case of an order under subsection (2) or (3) of section 37 , the court varies or discharges

that order.

(11) Subsection (10) is without prejudice to the jurisdiction of the court to make, at any time, an order under

section 37 with respect to access to the child or to vary or discharge such an order, including an order continued or

varied pursuant to that subsection.

(12) This section and section 43B are without prejudice to any other provisions of this Act, or any provisions of the

regulations for the time being in force under this Act, that in the interests of a child in care assign functions to the

Health Service Executive.

(13) For the purpose of this section and section 43B , ‘relevant time’ means—

(a) in relation to a child in care under section 4 , immediately before the child was taken into care under

that section, and

(b) in relation to a child in care under section 18 , immediately before a care order was made in relation

to the child.’

19. It is not disputed that, as set out in the mother’s psychiatrist’s report,

• the mother has been a patient of her local area mental health service since 1974;

• the mother has had over 70 hospital admissions since her first admission in 1974, and that many of these

admissions have been as an involuntary patient;

• the mother suffers from “a chronic enduring mental disorder that has responded poorly to medication leaving her

with residual symptoms and deficits”, further described as “a severe form of schizoaffective disorder with a strong

personality component that has short periods of remission and long periods of illness”; and

• shortly after their respective births, she signed a form of consent to or otherwise placed each of her children in

the care of the health board/HSE.

20. The psychiatrist states in the last sentence of her report that “in my opinion [the mother] lacks capacity”.

21. In the course of oral evidence given on 18 September 2012, the psychiatrist also stated that:

• as at 14 September 2012, mother was not capable of instructing solicitor/counsel, and

• while mother was at that date a voluntary patient, should she make any attempt to discharge herself, an

immediate application would be made to detain her involuntarily

22. The section 17(2) application and the section 43A application were both listed for 16 October 2012. Mother was not present, but

was legally represented. Father was not present or legally represented.

23. The solicitor for the foster carers applied to the Court for permission to remain in Court for the section 17(2) application, although

her clients are not party to those proceedings. Given what fell to be argued regarding procedures, and the issues that arise regarding

mother’s capacity and the consequence of any incapacity for the various applications, the Court was of the view that the solicitor for

the foster carers could remain in Court for all the applications and the other parties did not object to this.

24. Counsel for mother raised preliminary issues regarding the applications, which I summarise as follows:

(i) That the present proceedings (including all the applications) arose as a result of concerns of the foster carers

about obtaining consents from mother (e.g. for inoculations or vaccinations, school trips, passports, etc);

(ii) That each of the children was in the care of the HSE pursuant to section 4 of the Act (“in voluntary care”);

(iii) That the foster carers made their concerns known to the HSE, found the response of the HSE to be

unsatisfactory, including the response of the HSE regarding service of the section 43A application on mother, and

that the foster carers then took a direct approach to serving the section 43A application;

(iv) That service of the section 43A application personally by the foster carers’ solicitor was unnecessary and

should have been carried out through and/or by the HSE;

(v) That as a result of what was alleged to have occurred in the course of service and subsequent correspondence

between the solicitor for the foster carers and the HSE (including a threat of judicial review proceedings), the HSE

then issued the section 17(1) application;

(vi) That the application under section 43A is sufficient to deal with such concerns as the foster carers may have

regarding “consents”, particularly as section 43A(4)(b) provides the court with the discretion to dispense with the

consent of a parent otherwise required under section 43A(2)(d), and that the foster carers can and should proceed

with this application;

(vii) That the issue of the mother’s capacity to consent is a complex one which should be considered in the context

of her illness, in particular her difficulty with new or strange people; the mother has some capacity when she deals

with people she is familiar with over a period of time, and in that context she has capacity to give valid consent.

The Court should base any decision on the matter of capacity on what occurs over a period of time when she is

properly approached by familiar people rather than on an isolated incident, and that the mother’s history of hospital

admissions for mental illness and in particular her history of involuntary admissions do not give rise to any adverse

inference or presumption about her capacity to make decisions relating to the care of her children.

(viii) That the mother has been consistent over the years since the birth of her children in agreeing to place the

children in voluntary care, that she has not failed in her duty towards them, that she has been and remains

interested in their care, and that she has always provided “consents” when asked to do so.

(ix) That the mother’s current instruction is that she does not want the children to be in long term care, although

she does not express any wish or intention to take up care of the children at present and that the mother has not

said that she wants to assume care of the children and indeed realises that because of her own present needs for

high support she would not be able to care for the children.

(x) That the interim care order and/or its extension ought not be made, and/or ought not be granted, in

circumstances where the children are currently in the care of the HSE pursuant to section 4, that pursuant to

section 4 the HSE are obliged to maintain the children, that there is no intention or instruction by mother to bring

the voluntary care arrangement to an end, and that that it is not necessary for the protection of the children’s

health or welfare that they be placed or maintained in the care of the HSE on interim care orders pending the

determination of applications for care order.

(xi) That if care order applications are to be made pursuant to section 18 of the Act, they can be heard and

determined in due course without any necessity or requirement for any interim orders.

25. The solicitor for the HSE, the applicant in the section 17(2) proceedings, in summary submitted that the HSE had relied upon and

had been entitled to rely at all times on the mother’s placement of the children in its care as valid and subsisting until it was made

aware of the unequivocal statement of the mother (referred to at paragraph 9 above) that she wanted the care of her children to be

returned to her, and of the opinion of the psychiatrist including that the mother “lacks capacity”. When these two matters had come

to the attention of the HSE, it concluded that the mother was not well enough to agree to voluntary care on an on-going basis. In

those circumstances, the HSE further concluded that it was necessary to apply for interim care orders.

26. The solicitor for the foster parents in summary submitted as follows:

(i) That it is and has been the approach of the foster parents to ensure that the rights of the children/young people

are vindicated;

(ii) That the children/young people are entitled to certainty, particularly to certainty of their own status in care and

any orders under the Act;

(iii) That there are concerns about mother’s capacity, and consequently that there are concerns about the validity

of any consent that mother may have given;

(iv) That the long history of involuntary admissions confirms that the mother has been considered by her treating

clinicians as lacking capacity to make decisions in relation to her own treatment and liberty, and that it ought to be

inferred that she did not at all times have the capacity to agree to or consent to voluntary care under section 4 or

to give consent to an order under section 43A;

(v) That the discretion given to the Court under section 43A(4)(b) only arises where there is a valid and subsisting

“voluntary care” arrangement in being, and that (in her submission) there is no such valid arrangement in being, and

that therefore it is not open to her clients to apply for an order under section 43A(4)(b);

(vi) That given mother’s recent statements when served with the section 43A application, and the opinion of the

psychiatrist, it cannot now be maintained that the children are in “voluntary care”;

(vii) That the fact (if it is a fact) that mother may have given consents in the past does not give rise to any

presumption that she will continue to do so in the future (quite apart from the question of validity of any past

consent);

(viii) That it is improper for the children to be in “voluntary care” for as long as they have been;

(ix) That it is improper to continue to rely on such voluntary care arrangement as may have been entered into in

respect of the children.

Decision on Preliminary Issues

27. The initial application in this matter was the section 43A application. Applications under section 43A are made by foster carers to

the Court, and the HSE is not a party to such proceedings, although the consent of the HSE to the making of the order is an essential

proof.

28. An application under section 43A is an application that may be made by foster carers when a child/young person has been in their

care for 5 years or more. The application can be made whether the child is in “voluntary care” or in the care of the HSE under section

18 of the Act.

29. I am satisfied that section 43A is more than a mechanism to deal with problems and/or difficulties that may arise in obtaining

“consents”. Even where there is evidence that there has never been any difficulty with “consents”, I am satisfied that an order can

be made (and indeed in my view, all other things being equal, ought to be made) if the statutory proofs are in order and the court is

satisfied that the order is in the interests of the child and in accordance with the child’s views and wishes. While it is undoubtedly the

case that such an order may ease any difficulty that may exist in respect of “consents”, I am of the view that it does a great deal

more – it provides the child involved, and his/her foster carers with an important affirmation of the importance of and security of their

long term relationship. Section 43A applications are, therefore, “stand alone” applications that are not grounded upon any pre-existing

difficulties with “consents”.

30. In this case, the foster carers are of course aware (at least in a general way) of the mother’s circumstances, in particular her

mental health difficulties and hospitalisations. While it was entirely proper for the foster carers to consult with the HSE and the

mother’s clinicians regarding the issue of service, the service of the application on the mother is clearly the responsibility of the

applicants i.e. the foster carers. There is no denying that in this case, the service of the application has potentially adverse

consequences for the mother’s mental health, but I am satisfied that that circumstance alone cannot in any case permanently

prevent another party from proceeding. The solicitor for the foster carers clearly took the mother’s circumstances into consideration,

while properly pursuing her clients’ entitlement to proceed. She was not merely “within her rights” to serve the proceedings how and

when she did, she was acting quite properly in the interests of her clients and of the children affected to serve the mother when her

treating clinician had said it was possible to do so, and I regard any criticism of her actions in this regard as unfounded.

31. The obligation of the HSE to make applications under the Act, and more particularly to make the applications under section 17(1),

arise under section 16 of the Act. I do not believe it is for this court to examine the basis on which the HSE might decide to bring

such applications, rather it is the function of this court to decide whether any order should be made on such applications. Having said

that, I am satisfied that the decision to bring the section 17(1) application was (or at any rate could be) grounded on what transpired

during the effecting of service, and the current opinion of the treating clinician, and the general effect that such matters have on the

other circumstances of the case.

32. Section 4 of the Act provides for what has become known as the “voluntary care” of children. The placing of children in the care

of the state, whether on a voluntary basis or by court order, is a matter of extraordinary and fundamental importance to the child

involved, to his/her parents and other family members, and the State. I am satisfied, as a general proposition (and without attempting

to limit other matters that ought to be considered), that a decision to place a child in voluntary care requires a capacity to

understand the immediate consequences of so placing the child, and to continue to understand the consequences (particularly for the

child) of the continuance of that placement.

33. Section 4(2) of the Act provides that:

‘[w]ithout prejudice to the provisions of Parts III, IV and VI, nothing in this section shall authorise the Health

Service Executive to take a child into its care against the wishes of a parent having custody of him or of any

person acting in loco parentis or to maintain him in its care under this section if that parent or any such person

wishes to resume care of him.’

Clearly if a parent expresses a wish to resume the care of a child who has been placed in the care of the state, the HSE must return

the child to the care of the parent unless it obtains an order from the court. It is a feature of section 4 that no matter how long a

“voluntary care” arrangement has existed, it may be terminated with immediate effect by a parent.

34. I am satisfied on the evidence that mother has made the statement that she wanted the children to be returned to her care. If

that statement was made with capacity, then I am satisfied that it brought to an end any voluntary care arrangement that may have

existed at the time it was made. If it was made without capacity, then the issue of mother’s capacity to make decisions regarding the

care of her children and in particular the continued validity of any existing voluntary care arrangement becomes a real issue.

35. I do not accept that there is a direct correlation between a person’s capacity to make decisions regarding their own health and

care, and their capacity to make decisions regarding the care of their children, in that it remains possible that a person who is an

involuntary parent has capacity to make decisions regarding the care of their children. Whether an involuntary patient in fact has

such capacity would be a matter for evidence in each particular case.

36. I accept that capacity ought not necessarily be determined on the basis of one incident. In this case, while what occurred at the

time service of the section 43A was effected on mother may have been a catalyst, the issue of mother’s capacity crystallises in the

report and evidence of the psychiatrist, that, regrettably, in her opinion, over a period of time and taking into account her overall

knowledge of the mother as her clinician since 2003, the mother “lacks capacity”. While it may be prudent, particularly in light of the

submission now made in the case, to raise more specific queries with the psychiatrist, I am satisfied that for now I should accept her

opinion.

37. Section 17(1) provides for the making of an order where the judge of the District Court has “reasonable cause to believe” that the

circumstances set out exist etc. I am satisfied that I must deal with the case on an either/or basis. Either the statement made by

mother that she wished to resume care of her children was made with capacity and thus gives rise to reasonable cause to believe

that she brought any voluntary care arrangement to an end, or that there is reasonable cause to believe that mother when she made

that statement and over a period of time has lacked capacity (as is the opinion of the psychiatrist). Whatever about which is the

more likely, I am satisfied that if the former proposition is true, the consequence is that the care of the children must be returned to

the mother unless she executes a new valid placement of the children in the care of the HSE or the court makes an order placing the

children in the care of the HSE. If the latter proposition is true, then the consequence is that there is reasonable cause to believe

that mother does not have the capacity to understand and to continue to understand the consequences (particularly for the children)

of the continuance of placement in voluntary care, and that therefore the voluntary placement is “flawed” as submitted by the HSE,

or “cannot be relied upon” as submitted by the solicitor for the foster carers.

38. It appears to me that the essence of the submissions on mother’s behalf is that the voluntary care arrangement entered into by

mother shortly after the birth of each child remains valid. If it is, then it would certainly be arguable that there is no necessity to

grant or extend orders under section 17, and that application could be made under section 43A(4)(d). I am satisfied that there is

reasonable cause to believe that any previous voluntary care agreement is no longer in existence and/or no longer valid, and that it is

necessary to proceed to hear the application under section 17(2) to determine whether the grounds for an order are made out and

whether it is necessary to make such order.

39. I do not think it is necessary for me to make any determination as to the validity of the voluntary care arrangement ab initio, and

even if such decision falls within the jurisdiction of this court, further evidence would be required.

40. The solicitor for the foster carer has raised the issue of whether in principle it is proper that children should remain in voluntary

care for the very prolonged periods that these children/young people have. I do not think it is necessary to determine that issue

either, however I share the concern that voluntary care arrangements that last for this length of time may per se not be in the best

interests of children subject to them, not least because of the possibility that always exists of the arrangement being brought to a

sudden, chaotic end with all the potentially traumatic experiences that might result for the subject children.

Decision on Section 17(2) Application:

41. Evidence was given by Social Worker 1. No evidence was given by or on behalf of mother. Father did not appear and was not

represented.

42. I am satisfied on the basis of the evidence that I have heard today in this case, and my knowledge of the case from previous

hearings that the grounds continue to exist to grant an interim care order under section 17 in that there is reasonable cause to

believe that the children’s health, development, or welfare is likely to be avoidably impaired, or neglected unless the Court makes the

order. While, if the order were not made, I accept that the situation would have the appearance of stability, I am not satisfied that it

would be sufficiently stable to properly guarantee the continued health safety and welfare of the children, because it is at best

predicated upon a voluntary care agreement that could be withdrawn at any time – that is stating it at its best.

43. With regard to the section 43A application, I adjourn that. I am satisfied that it is appropriate for the foster parents to have made

their section 43A application, whether this is a voluntary care arrangement or otherwise. Having made it and it then transpires that

the consent of mother is not available, it is appropriate to leave the application “live” to deal with the situation where either the

consent comes through or the matter is otherwise dealt with. It is a matter for the parties to the section 43A application to decide

whether to make an application under section 43A(4), but I accept that there may be considerable difficulty with such an application

in light of the argument that section 43A(4)(b) could only apply where there is a properly extant voluntary care arrangement.

44. I extend the interim care order to 23 October 2012. I adjourn the section 43A application to the same date.