District Court orders HSE to consider private foster care for child despite funding constraints under Child Care Act 1991.

[2012] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SH & JB

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF A CHILD

9 February 2012

1. The child who is the subject of these proceedings (“the child”) is a boy aged 11 years. He has been in the care of the HSE since

late 2009, initially pursuant to an emergency care order under section 13 of the Child Care Act 1991 (“the CCA”), then, on the

expiration of that emergency care order, pursuant to an interim care order under section 17 of the CCA and a considerable number of

extensions of that interim order, and ultimately pursuant to a care order made in late 2010 under section 18 of the CCA. The care

order continues in force until his 18th birthday. The proceedings have remained before the court for the purpose of review of matters

relating to that care order.

2. The GAL was appointed to the child in April 2010 and remains appointed.

3. It is generally recommended that children less than 12 years of age and who are in the care of the HSE should not, except in

exceptional circumstances, be placed in residential care, i.e that they should be placed in foster care. This is confirmed in the

‘National Policy in relation to the placement of children under 12 years in the care and custody of the HSE’ issued by the Office of the

Minister for Children and Youth Affairs, and is also a recommendation of the National Children in Care Inspection Report issued by HIQA

in 2008 (page 82 recommendation number 17). Upon his reception into the care of the HSE, the child, who was then aged about 9

years and 6 months, was placed in residential care. He presented with a severe behavioural disorder and significant difficulties in the

area of a second behavioural disorder, and with severe emotional and behavioural difficulties. Reports indicate placement in residential

care was required at that time, and no issue arises in this regard.

4. Within a short time of his reception into care, the acting social workers and others involved in his care formed the view that foster

care, rather that residential care, would be more suitable and beneficial for the child. Placement in foster care was, however, not

immediately pursued, apparently for the good reason that there was in existence of a plan to reunify the child with his parents and it

was felt that, on balance, it would not benefit the child to move him to a foster placement (which would be unfamiliar to him) for

what was then anticipated to be a short period prior to reunification with his family.

5. Regrettably, it transpired that the reunification plan was not viable. This was specifically recognised and recorded at a child in care

meeting in May 2010. This meeting also recorded that the residential placement where the child was placed was unsuitable (which

view was confirmed by the staff of the residential unit where the child is placed), that foster care placement was the only suitable

option for the child, that the child would thrive in long term foster care, and that the plan for the care of the child should be to seek

a suitable long term foster placement for the child until his 18th birthday.

6. Section E of the care plan prepared for the child by the HSE dated February 2011 specifically states that “the child is

inappropriately placed” [in his residential placement].

7. Since the child in care meeting of May 2010, it has been and it remains the position of the HSE that placement in foster care is the

best option for the child, and this position is fully endorsed by the GAL. For the removal of any doubt, I find that it is the professional

opinion of all professionals involved in the child’s care that his present placement is unsuitable, and that his welfare would be best

served by placement in a foster care placement. It is clear that this is the professional opinion of the HSE. The reference at

paragraph 36 of the HSE submissions to the child’s placement in a long-term foster placement as the “preference” of the HSE does

not adequately reflect that professional opinion.

8. The child has at all times since his reception into care remained in his original placement in residential care. There is not and never

has been any question or issue about the care provided to the child in this placement – the issue that does arise is the suitability of a

residential placement for a child of this age, and the professionals from the placement themselves endorse the view that the

placement of the child in their facility is not suitable.

9. Since May 2010, the HSE has made very considerable efforts to secure a foster placement for the child, without success.

10. The continued placement of the child in residential care has remained of great concern to the social work team, to the GAL, and

to the court. When the care order was made, the proceedings were listed for review for a number of reasons, one of which was for

the HSE to furnish the court with a report regarding the placement of the child in foster care. This issue of the placement of the child

in foster care has continued to be subject to review by the court.

11. The child’s parents have not attended any of the review hearings held since the granting of the care order.

12. Funding a foster placement for the child has been an issue since May 2010, more particularly whether the HSE would be prepared

to fund a “private” placement, i.e. a placement sourced through a private agency rather than a placement sourced directly through

the HSE. At the child in care meeting of May 2010, it appears that the GAL requested that the HSE consider “private” foster

placement, and that the HSE would not consider “private” placement at that time due to a lack of availability of “private” carers in

the Dublin area and the absence of funding for same. Subsequently, it appears from reports that the HSE did approach private

agencies, as is mentioned in a report for court dated 8 April 2011, which refers to two such agencies, who are reported not to have

places available for the child, and further in a report of 7 September 2011 at heading 3.1 final paragraph. Thereafter, it appears that

the HSE again stated that it would not fund a “private” foster placement for the child.

13. When the matter came on for review on 12 January 2012, the GAL sought clarification of the HSE’s position regarding funding of a

“private” placement for the child. The HSE referred to its efforts to source a “HSE” placement, including the establishment of a

Service Improvement Team and its hopes that a placement might soon be identified from within “HSE” resources (as set out in detail

at para 11 of the HSE submissions). It then stated its position to be that while it continued to be of the opinion that the child would

be best placed in foster care rather than residential care, it would not consider placement of the child in a “private” foster placement

as long term funding would not be made available for such a placement. Furthermore, it would not be in the interests of the child to

be moved to a short term “private” placement and that therefore only placement with a HSE foster carer would be considered. This

position applies to placement within Town 1 or outside Town 1. (It is stated in the HSE submissions (paragraph 12) that this was

related to the age of the child and that this was clarified to mean that given his age, any “private” placement would be for a period of

over 6 years and would involve substantial additional cost in comparison to the cost of a “HSE” placement).

14. When the HSE position had been clarified, two further related issues arose. The first issue related to the child’s age, and the

existence of a “window of opportunity” to place the child in foster care before his increasing age makes it so unlikely that such a

placement would be successful that it would be counterproductive to attempt such a placement.

15. The second issue was that in other cases, the HSE has continued to fund “private” placements in the manner that it refuses to

consider in this case. The HSE stated (on 12 January 2012) that the position adopted in this case was a decision in this particular

case only.

16. In light of the on-going concerns regarding the child’s continued inappropriate placement in residential care, as expressed by the

GAL, by the HSE, and by the court in the course of the proceedings and in particular in the course of the reviews of the care order,

the court requested the parties to make submissions on the question of whether the court should make a direction under section 47

of the CCA that the HSE, in seeking a foster placement for the child, would not exclude consideration of “private” placements.

17. The court then heard the matter further on 6 February 2012. The HSE confirmed its position as set out above. The HSE stated

that the reason for excluding consideration of “private” placement was the cost of such placement in comparison to the cost of a

“HSE” placement. The cost of a “HSE” placement was stated to be approximately €350 per week (which is the amount of the

allowance paid to a foster carer). It was submitted that the cost of a “private” placement would cost 3 to 4 times as much as a

“HSE” placement, and that over the projected lifetime of the care order the difference in cost would run substantially into six figures.

The GAL has pointed out that the figure suggested as the cost of the “HSE” placement does not include the cost to the HSE of

providing an allocated social worker and a fostering link worker and other ancillary services, whereas such services are included in the

cost of a “private” placement. I am of the view that the GAL is correct in stating that €350 is not the full cost of a “HSE” placement,

nevertheless, I am satisfied for the purpose of this decision that the cost of a “private” placement substantially exceeds that of a

“HSE” placement.

18. During the hearing on 6 February, reference was made to the desirability of placing the child in Town 1, and to this being one of

the criteria contained in the relevant guidelines for selection of a placement for the child (i.e. that he be placed near his

home/community), and of maintaining his access to his present school. This had been a consideration throughout the efforts to

secure a foster placement for the child. The GAL’s view is that while these matters have been important and relevant, the actual

placement in a foster placement is now of more importance than the location of the placement and that placements throughout the

country should be considered. I am satisfied to adopt the GAL’s general view on this, subject to the proviso that these matters may

be reconsidered if a specific placement is in fact identified outside of Town 1.

19. During the hearing on 6 February, I indicated that for the purpose of this decision I would accept as a general proposition that it

is of great importance that a child be placed in foster care prior to his or her 12th birthday so as to ensure a reasonable chance that

the child would actually settle, recognising that the older a child gets (particularly over 12 years), the less chance there is that

placement in foster care will succeed. I also indicated that in applying this proposition to the facts of this case, I would regard the

securing of a foster placement for the child as being of great urgency.

20. Section 3 of the CCA provides (inter alia) as follows:

“(1) [i]t shall be a function of every health board to promote the welfare of children in its area who are not

receiving adequate care and protection.

(2) In the performance of this function, a health board shall -

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

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

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

(i) regard the welfare of the child as the first and paramount consideration…”

21. Section 18(3) of the CCA provides (inter alia) as follows:

“[w]here a care order is in force, the health board shall -

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

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

for the purpose of safeguarding or promoting the child's health, development or welfare;

and shall have, in particular, the authority to—

(i) decide the type of care to be provided for the child under section 36…”

22. Section 24 of the CCA provides (inter alia) as follows:

“[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…”

23. Section 36 of the CCA provides (inter alia) as follows:

(1) Where a child is in the care of a health board, the health board shall provide such care for him, subject to its

control and supervision, in such of the following ways as it considers to be in his best interests

(a) by placing him with a foster parent, or

(b) by placing him in residential care (whether in a children's residential centre registered under Part

VIII, in a residential home maintained by a health board or in a school or other suitable place of

residence), or

(c) …

(d) by making such other suitable arrangements (which may include placing the child with a relative) as

the health board thinks proper.”

24. Section 47 of the CCA 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.”

25. The power of the District Court to make give directions and make orders under section 47 of the CCA was considered in Western

Health Board v KM [2002] 2 IR 493. At pages 510 and 511, McGuinness J said as follows:

“I would therefore accept the submission of the respondent that the construction of the Act of 1991[the CCA] 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.”

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. I think the only

reasonable interpretation of s47 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

[now the HSE], 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”.

26. Apart from the decision to make a care order, the placement of a child is probably the single most important decision that will be

taken in a child’s life in care. A successful placement greatly improves the chances of a positive outcome for the child, an

unsuccessful placement and/or consequent change (or changes) of placement greatly lessens the chances of a positive outcome for

the child. The issue of placement of a child is undoubtedly “[a] question affecting the welfare of the child”.

27. In its submissions, the HSE refers to the following passage in the judgment of McGuiness J in WHB v KM at page 512:

“[i]n this jurisdiction both parents and children enjoy constitutional rights. The Oireachtas has rightly drawn

attention to these rights in several sections of the Act of 1991. It is ultimately for the Court and not for the

Applicant to protect these constitutional rights in respect of children who are in care. This conveniently can be

done through the powers given in s 47 of the Act.”

28. It is submitted by the HSE that the correct interpretation of this passage is to limit the power of this court to situations where

there is a disregard of the constitutional rights enjoyed by parents and children, and that this interpretation is in turn supported by

the remarks of Hamilton CJ in McKenna v An Taoiseach (No 2) [1995] 2 IR 10, which begin “the courts have no power, express or

implied to supervise or interfere with the exercise by the Government…”

29. I do not accept this submission by the HSE. As to the passage from the judgment of McGuinness J, I am of the view that both as

quoted, and in the wider context in which it occurs in that judgment, it states that section 47 is a convenient vehicle for the

vindication of constitutional rights without in any way limiting section 47 to dealing solely with the vindication of such rights. The

interpretation contended for by the HSE would be inconsistent with the entirety of the judgment in that case, and in particular with

the finding that the CCA ought to be constructed “in a purposive manner and that the Act… should be construed as widely and

liberally as fairly can be done”. I am satisfied that the power of this court to make an order under section 47 is engaged when there is

any question affecting the welfare of the child in care, whether such question involves the vindication of a constitutional right or not

(and consequently that it is not necessary for this court to determine on way or the other whether the child’s placement involves or

engages constitutional rights). Put another way, it is the issue of the welfare of the child, and not the issue of breach of a

constitutional right, that engages section 47.

30. Furthermore, the passage quoted from the judgment of Hamilton CJ in McKenna does not in my view support the HSE’s submission.

On the contrary, section 47 has been interpreted as giving this court the power to interfere with decisions of the HSE, as stated by

McCracken J in EHB v McDonald:

“[t]his is not to say that the District Court should interfere in all day to day decisions made by a health board [now

the HSE], 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”. [emphasis added]

31. The statement by McGuinness J that “[t]his 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” indicates that there is a limit to the orders that may be made by the District Court under

section 47.

32. The judgment of McGuinness J identifies that section 47 must be interpreted in a purposive manner, and construed widely and

liberally, in the general context of the CCA. Section 47 itself is limited to any question affecting the welfare of the child, is

discretionary, and the court may only give such directions and make such orders as it thinks proper.

33. I think that it is fair to say that the balance of the submissions of the HSE, and indeed the submissions of the GAL, deal largely

with the issue of separation of powers, in particular powers of the courts. The jurisdiction of the District Court is determined by

statute. In the context of this case and its subject matter, the jurisdiction of the District Court is determined by the CCA. It is the

statute that confers the powers that the District Court has under the CCA, and it is those powers that the District Court exercises.

The legislature may confer any power on the District Court, in my view this court may not refuse to exercise any such power

conferred.

34. The essence of section 47 is that “[w]here a child is in the care of the Health Service Executive, the District Court may … give

such directions and make such order on any question affecting the welfare of the child as it thinks proper…”

35. 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 give such

direction or 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.

36. Section 18(3) of the CCA provides (inter alia) that “[w]here a care order is in force, the health board shall ... have, in particular,

the authority to …decide the type of care to be provided for the child under section 36…”.

37. Section 36 of the CCA provides (inter alia) that:

“(1) [w]here a child is in the care of a health board, the health board shall provide such care for him, subject to its

control and supervision, in such of the following ways as it considers to be in his best interests

(a) by placing him with a foster parent, or

(b) by placing him in residential care (whether in a children's residential centre registered under Part

VIII, in a residential home maintained by a health board or in a school or other suitable place of

residence)…[emphasis added]

38. Section 36 provides that the HSE shall provide such care for a child in its care as it considers to be in his best interest. The HSE

has determined in this case that it is in the best interests of the child that he be placed in long term foster care. Section 36 does not

distinguish between “private” and “HSE” foster placements. While I have throughout this decision, for convenience, used the labels

“private placement” and “HSE placement” as used by the parties, I am of the view that such labels have no significance in

themselves. Once the HSE has determined that foster care is in the child’s best interest, then that is the form of care which is

appropriate, regardless of how the provision of such care is sourced or managed.

39. The HSE contends that, while a long term “private” foster placement could provide the type of care that is in his best interest,

nevertheless it is not in his best interest to be placed in a “private” foster placement, because such a placement cannot be sustained

because the HSE will not fund such placement in the long term.

40. The HSE assures the court that it is making strenuous efforts to identify a “HSE” foster placement, including the accelerated

assessment of a significant number of potential foster carers both in Town 1 and elsewhere. The HSE further states that the child’s

case is prioritised for placement with such “HSE” foster carers who may be identified as suitable following such assessments, subject

to “matching” the child and the potential carers. The court does not doubt the bona fides of the HSE in this regard and indeed will

welcome in general any acceleration in assessment of potential carers which might address the often referred to shortage of foster

placements. However, the court is aware that there have been considerable efforts to place this child in the past, including

prioritisation, and indeed including exploring provision of a “private” placement, to no avail. The court is aware that given his age, his

needs and diagnosis, and, very regrettably, the issue of his surname, that he will be difficult to place.

41. Time is running out for this child, in terms of securing for him the long-term foster placement that is so clearly in his interest. Time

is running out to the extent that if the present “campaign” to place him is unsuccessful, and if he is not placed within the next very

few months, his opportunity to live in a long-term foster placement may be lost to him forever. If this occurs, it will remain the

obligation of the HSE to continue to provide for his care, which is then likely to be continued residential care.

42. It is of course entirely reasonable that the HSE should consider the cost of providing care. The HSE should in any particular case

consider all of the options that might be available to it to provide suitable care. Where suitable care which is in the best interests of a

child is available from different sources, it should spend its money prudently. If a “HSE” placement is much cheaper than a “private”

placement, and both placements are available and equally suitable, then it is reasonable that it opt for the cheaper one. If there is

time available to allow for a campaign to source a “HSE” placement, then within reason and without compromising the best interests

of the child, such time should be taken. What the HSE should not do, in the absence of any identified suitable HSE placement, is to

eliminate the consideration of other possible placements which may be more expensive but which may be available to meet the best

interest of the child. If there is no “HSE” placement available, but there is a choice of equally suitable “private” placements available,

than the HSE should opt to fund the cheaper one. Ultimately, if there is only one suitable placement available, then that is where the

child ought to be placed, otherwise his best interest are not met.

43. As I have stated above, time is running out for the child in this case. It appears to me that time is also running out for the HSE. If

the HSE fails to identify and secure, from whatever source, a long term foster placement for the child, then it will be obliged to

continue to care for the child by way of provision of residential care. Apart entirely from the present unsuitability of such placement,

and the long term consequences that may flow from any failure to identify and secure a long term foster placement, the continued

placement of the child in residential care has significant long term cost implications. The HSE did not open these implications to the

court, and when the court requested costings for the child’s placement in residential care this was not made available. The HSE did,

however, state to the court that the cost of residential care would be a multiple of the cost of “private” foster care. It appears to

me, therefore, that if the cost of a “private” foster placement is, for example, likely to be three times as much as a “HSE” placement,

the cost of a residential placement (wherever sourced and including the present placement) is likely to be of the order of three times

as much as a private residential placement. Therefore, if the child remains in residential care, this will be of the order of three times

more expensive that a “private” foster care placement. If no “HSE” foster placement is available and a “private” foster placement is

available but not availed of for the reason advance by the HSE, then the potential difference in cost to the state is double that

between the cost of a “HSE” foster placement and a “private” foster placement.

Conclusion

44. It is the professional opinion of all concerned with the child, including the HSE, that it is in the best interests of the child to be

placed in long-term foster care. The HSE has decided that it will not consider a long-term “private” foster care placement. This

decision is stated by the HSE to be in the best interests of the child because funding will not be available in the long term for a

“private” foster placement. This decision has the effect of eliminating potential foster care placements from consideration.

45. It is the decision of the HSE that it will not fund a long-term placement for the child. This is a decision that relates to a child in

care. Such decisions must be made having regarded the welfare of the child as the first and paramount consideration. Having regard

to the professional opinion of all concerned that it is in the best interests of the child to be placed in foster care, having regard to the

history of this case as regards the efforts to place this child in foster care, and having regard to his age and the urgency of achieving

a placement shortly if it is to be achieved at all, the decision not to fund a “private” foster care placement is not in his best interest

and does not in my view have regard to the welfare of the child as the first and paramount consideration, in that its effect is to

eliminate, at this crucial time, possible placements which if available would be in his best interest.

46. I do not accept that the HSE may rely on the effect of a decision that has been made without having regard the welfare of the

child as the first and paramount consideration as justifying the decision, i.e. that it is not in the best interests of the child to place

him in a “private” placement because the HSE has decided not to fund it. It remains in the best interests of the child to be placed in a

long-term foster placement from whatever source.

47. It is within the statutory power of this court to give directions and make orders in relation to any question affecting the welfare

of a child in care. The issue of the child’s placement is a question that affects the welfare of the child in the most fundamental way.

To eliminate a possible pool of foster carers for the child is not in his best interests, in all of the circumstances of this case and

particularly having regard to his age and the “window of opportunity” which will shortly close.

48. The issue of a foster placement for this child is a question affecting the welfare of a child, and is an issue within the general

context of the CCA. I am satisfied that the power of this court to give directions and make orders extend to the directions I intend to

make in this case, that it is in the interests of the child that that the court exercises its discretion to give the directions and that it is

a proper direction to give. I am satisfied that the direction I intend to give is proportionate.

49. I direct the HSE to forthwith consider long-term private foster placement for the child.

50. I adjourn the review in this case to Friday 24 February 2012 and require the HSE to report on the progress of securing a foster

placement for the child including through private agencies.