Court grants aftercare plan directions but refuses commitment to specific accommodation under Child Care Act 1991 s.47.

[2014] IEDC 08

AN CHUIRT DUICHE THE DISTRICT COURT

DUBLIN METROPOLITAN COURT

LH

Applicant

-and-

CHILD AND FAMILY AGENCY

Respondent

-and-

MH AND RH

Notice Parties

IN THE MATTER OF SECTION 47 OF THE CHILD CARE ACT, 1991

IN THE MATTER OF LH (A CHILD)

31st July 2014

Proceedings

1. The applicant (“LH”), who was born in August 1996, will be 18 in August 2014 and who was made a party to the proceedings

pursuant to an order of the District Court under s. 25 of the Child Care Act, 1991 (hereinafter referred to as ‘the Act of 1991’), is

seeking directions from the Court pursuant to s. 47 of that Act:-

a) “directing the provision of an aftercare plan for the above mentioned child prior to his/her 18th birthday;

b) directing the provision of an aftercare worker for the above child for the purpose of devising the said aftercare

plan;

c) directing that the aftercare plan for the above child address the accommodation needs of the above child taking

account of his/her expressed wishes;

d) directing that the aftercare plan for the above child plan for his/her to be accommodated in the current area of

residence;

e) directing that the aftercare plan for the above child commit to his/her continued accommodation at his/her

current placement pending the identification of appropriate accommodation in the surrounding area.”

Background

2. LH came into the voluntary care of the respondent, the Child and Family Agency (“CFA”) in November 2013. Prior to coming into

care, LH had been an inpatient in at a children’s hospital since late May 2013 where he/she had presented with deliberate self-harm

and suicidal ideation. LH was diagnosed with an Emotionally Unstable Personality Disorder. It was not possible to discharge LH home

due to the risks of his/her self-harming if returned to the home and the resistance of his/her family to comply with the discharge plan.

A referral was made in October 2013 to the Central Referrals Committee and a residential placement was identified for LH to which

he/she was discharged in December 2013. LH subsequently moved to his/her current placement in January 2014. LH was referred to

Dr KH, a Child and Adolescent Psychiatric Consultant with a specified Clinic whom LH has attended on weekly basis since Christmas

Eve, 2013. The clinic is a children’s service but Dr KH will be available to LH until he/she transfers to the Adult Mental Health Services

in his/her new catchment service.

3. LH brought these proceedings in which he/she was represented by solicitor and counsel and was supported by his/her advocate.

LH’s parents were served with the proceedings as notice parties and LH’s father attended and was represented by a solicitor who

submitted that the aftercare provision for LH was inadequate. LH was unwilling to enter the court room to give his/her evidence while

his/her father was present in court room and the father agreed to withdraw from the proceedings to enable LH to give his/her

evidence.

4. I heard evidence from LH that he/she is worried about what will happen to him/her when he/she turns 18. LH believes that his/her

social worker, Mr MH, will be withdrawn and that he/she will be left without any further support from the CFA. LH is aware that there

is a commitment to him/her remaining in his/her current placement for 1 month after his/her 18th birthday but LH has no idea what

accommodation will be available to him/her thereafter and is worried that he/she will be homeless. LH does not know what his/her

immediate future holds. LH has settled very well into his/her current education and training centre in his/her current area and wants

to remain living in that area so that he/she can commence a 2 year Leaving Cert Applied course in September 2014. For the first time

LH feels settled and part of a community. LH says he/she is calmer, more confident and wakes up looking forward to the day. He/she

has found her current placement to be very supportive of him/her and he/she has benefited from the availability of personnel there.

LH said that he/she feels he/she is ready to live independently but would need someone to check in on him/her twice or three times a

week. He/she requires assistance to source and apply for private rented accommodation in the current area and with accessing the

support services he/she will need.

5. Ms MF gave evidence that in her experience as a solicitor practising in the area of child care that the allocation of a dedicated

aftercare worker would “open the door” to an aftercare plan in which LH’s accommodation needs in the preferred area would be

addressed in the sense that there would be a commitment to providing accommodation and any necessary funding would

automatically follow once an aftercare worker was assigned. A medical report from Dr KH was also put into evidence.

6. Two reports, dated July 2014 and an updated report a week later in July 2014, were provided to the Court by Mr MH, LH’s allocated

social worker, who swore that the contents were true and accurate and who supplemented this with oral evidence. He gave evidence

that LH’s current placement is a specialised unit which provides support to children with suicidal ideation and that while it is not

suitable for an adult LH will require supported accommodation and would have difficult in fending for himself/herself at his/her 18th

birthday. He confirmed that prior to May 2014, accommodation in the area where LH’s parents are resident and his/her mental health

service was based was being looked at but that since May 2014, services in LH’s preferred area are being considered in line with the

expressed wishes of LH to remain in his/her current education and training centre. He gave evidence that the report which he had

provided to the Court was the equivalent of an aftercare plan and that LH will not be denied aftercare services.

The Law

7. Section 47 of the Act provides that:-

“Where a child is in the care of the Child and Family Agency, 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.”

8. In EHB v McDonnell [1999] 1 IR 174 at p 184 McCracken J. held that:-

“… 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.”

9. It is clear both from the terms of s. 47 itself and from the judgment of McCracken J. that the jurisdiction of the court under s. 47

relates to “the child”. It does not extend beyond the minority of the child and directions under the section are limited to those

affecting the welfare of a child and cannot include the welfare of an adult who has ceased to be a child.

10. Section 45 of the Act of 1991 contains the obligations of the CFA in relation to the provision of aftercare services to children in

care. Section 45 states:-

“(1) (a) Where a child leaves the care of the Child and Family Agency, the Agency may, in accordance with

subsection (2), assist him for so long as the Agency is satisfied as to his need for assistance and, subject to

paragraph (b), he has not attained the age of 21 years.

(b) Where the Child and Family Agency is assisting a person in accordance with subsection (2)(b), and that person

attains the age of 21 years, the Agency may continue to provide such assistance until the completion of the course

of education in which he is engaged.

(2) The Child and Family Agency may assist a person under this section

in one or more of the following ways:—

(a) by causing him to be visited or assisted;

(b) by arranging for the completion of his education and by contributing towards his maintenance while

he is completing his education;

(c) by placing him in a suitable trade, calling or business and paying such fee or sum as may be requisite

for that purpose;

(d) by arranging hostel or other forms of accommodation for him;

(e) by co-operating with housing authorities in planning accommodation for children leaving care on

reaching the age of 18 years.”

11. The High Court in Enugye v HSE [2011] IEHC 507 has held that s. 45 is:-

“to be interpreted as not imposing upon the respondent an absolute duty to provide for the needs for assistance of

a child leaving the care of the Health Service Executive … 45(1)(a) imposes on the respondent a duty to exercise

its discretion taking into account the need for assistance of the individual concerned and complying further with the

general provisions of section 45. … The discretion of the respondent is enshrined in statute, and it so happens that

on this occasion the decision made by the respondent in relation to the applicant was in accordance with

government policy. In the event that the respondent decides that an after care plan is warranted in a particular

instance, it has the discretion to implement this pursuant to section 45.”

12. Section 8(9) of the Child and Family Agency Act 2013 provides that the resources of the Agency are to be used in an effective

and efficient manner. The resources of the CFA are not unlimited and as has been set out in E.T. v Central Mental Hospital [2010]

IEHC 378 in relation to the allocation of health resources “a court should not interfere in favour of a litigant patient so as to put him

or her by court order above others on a waiting list. Issues as to the proper priority of resources are ones that should be properly left

to the competent authorities.” This applies with equal force to the allocation of aftercare resources by the CFA which has in any

event been clearly left to the discretion of the CFA in s. 45 of the Act of 1991.

13. The National Policy and Procedure Document for Leaving and Aftercare Services (undated but for review on 01.04.2012) sets out

“Eligibility for Services” in paragraph 2.1 where it is stated that “[a]ll young people who have had a care history with the HSE are

entitled an Aftercare Service”. However at subparagraph 3 it states that a child must be in “continuous care for a period of 12

consecutive months prior to their 18th birthday [Community Welfare Requirements]” in order to meet the primary eligibility criteria for

Aftercare Services. It is stated that this criteria is drawn from the “legislative framework”. It is not clear what the basis of this

criteria is or where the “Community Welfare Requirements” are set out. It was suggested in submissions to the Court that this arises

from the Regulations of the Department of Social Protection in relation to eligibility for full rates of Jobseekers Allowance for young

persons aged under 26 where children who were in “statutory care” for 12 months prior to their 18th birthday are exempted from the

reduced rate. While this may explain the origin of the criteria, it does not provide any rationale for excluding children who were in care

for less than 12 months from eligibility for aftercare services.

14. It is clear that any directions given by the Court pursuant to s. 47, notwithstanding their all encompassing nature, are limited to

when LH is a child and that the Court cannot direct the provision of services after LH is 18. It is also clear that LH has a statutory

right under s. 45 to have his/her aftercare needs assessed in light of his/her individual needs and cannot be excluded from the

provision of aftercare services by way of an apparently arbitrary eligibility criteria which has no legislative basis, merely by its

inclusion in a National Policy. All children in care have a right to have their aftercare needs assessed not just those who have been in

care for 12 months prior to their 18th birthday. Nevertheless, the obligation on the CFA is to satisfy itself as to the child’s need for

aftercare services. The Court cannot encroach upon the discretion of the CFA, when it is properly and not arbitrarily, exercised. The

allocation of scarce resources is a matter for the CFA not the District Court.

Conclusions

15. LH does not meet the National Policy expressed criteria for eligibility for aftercare services but it is clear from the aforementioned

reports of Mr MH provided to the Court in July 2014 that notwithstanding the policy of the CFA to limit after care services to children

who have been in care for at least one year, LH’s aftercare needs have been assessed by the CFA based on his/her individual

requirements and it is proposed to provide him/her with some aftercare assistance. This includes:-

a) A commitment has been made to funding his/her current accommodation for 4 weeks post care.

b) LH is to be provided with advice and support in accessing an appropriate supported social housing placement

from the relevant County Council. The location of the housing is to facilitate LH in remaining engaged with his/her

current education and training service.

c) There is also a commitment to assisting with the transfer of responsibility for LH’s mental health to the relevant

adult mental health services in the relevant area and contact has been made with the relevant personnel to

facilitate this.

d) Mr MH, who has been LH’s allocated social worker, has been working on his/her aftercare needs and has

identified supports and assistance which can be made available to LH. There is a commitment that he will continue

to work with LH as long as it is deemed appropriate.

e) Mr MH will assist LH in getting his/her social welfare entitlements and rent allowance.

16. The applicant seeks the allocation of an “aftercare” worker and the preparation of an “aftercare plan” by way of direction under s.

47. In the updated report dated July 2014, a commitment has been given by the CFA that Mr MH will continue to work with LH for as

long as is “deemed appropriate” which is likely to be until LH is linked with another appropriate service with a key worker or someone

in a similar role to support him/her and which is also dependent on LH’s consent and cooperation as he/she will be over 18.

17. Mr MH has been working with LH since he/she came into care and there is a very short period of time until LH “ages out” in which

it would be difficult for LH to establish a relationship with a new social worker. I do not accept that the provision of an allocated

aftercare worker is necessary for LH to be considered for aftercare funding. Clearly funding has been granted for the extension in LH’s

current placement in the absence of an allocated aftercare worker. And even if a designated aftercare worker were allocated, there

would be no guarantee of funding for additional services. It would still have to be applied for and might not be granted. The National

Policy for Leaving and Aftercare Services clearly envisages at paragraph 2.3 that although generally the allocated social worker’s role

will cease when the child is 18, there are cases where it is appropriate for the allocated social worker to continue to support the

young person where they have a significant relationship with the young person or if it is assessed that a professional social work

service is necessary. It has been submitted to me, and I accept, that this is such a case where the allocated social worker should

continue to support LH and I am therefore refusing to direct the allocation of a designated aftercare worker.

18. However, the National Policy for Leaving and Aftercare Services also sets out clearly the issues that should be addressed and set

out in an aftercare plan and which a child leaving care has a clear expectation of having been set out in writing. It has been

submitted that the reports provided to the Court contains in all but formatting an aftercare plan for LH and that a direction to provide

an aftercare plan is unnecessary as it would be simply a question of how the document is laid out.

19. Although many of the issues facing LH are addressed by paragraph 2 of the updated report of July 2014, there are also clear

deficits in the information set out. In particular there is no “Contingency Plan” nor is there any clear list of the support services and

contact details for those services so that LH can clearly understand where and how he/she is to access help when he/she needs it. It

is also clear from LH’s own evidence to the Court that he/she is unaware of the extent of the commitments the CFA has made to the

Court in relation to the provision of aftercare support to him/her.

20. Having regard to LH’s particular needs and his/her mental health vulnerability, it is only proper that the commitments that the CFA

has made to provide support for LH be clearly set out for him/her in a plan which is easy for him/her to read and understand; it is

clearly in LH’s best interests that such a plan be set out for him/her and I am granting that direction.

21. The directions sought at paragraphs c, d and e of the application relate to the accommodation needs of LH. Insofar as I have

already directed that an aftercare plan be provided to LH, it follows that the plan should address his/her accommodation needs taking

account of his/her expressed wishes to remain in the area of LH’s current education and training centre and also having regard to

his/her need for support and mental health services. Having regard to the evidence, I have no doubt but that the plan should plan for

him/her to be accommodated in his/her preferred area. These are not directions that accommodation will be provided but that the

plan set out the steps that will be taken in an effort to secure appropriate accommodation. I therefore grant the directions a sought

at paragraphs c and d.

22. However, it does not appear to me that it is within the power of the Court under s. 47 to direct the plan to commit to any

particular or specific accommodation. A commitment has been given that LH can remain in his/her current placement for 4 weeks while

his/her application to the relevant Council housing list is being assessed. A supported social housing placement will be sought and LH

will be supported in seeking priority for such a placement. It is hoped that his/her application for Disability Allowance (and rent

allowance if required) will also be determined shortly. In evidence before the Court Mr MH on behalf of the CFA committed to

supporting LH through these applications and appeals if required. But he conceded that it is possible that there may be a “gap”

between the expiration of LH’s extension in his/her current placement and the procuring of alternative accommodation.

23. LH’s welfare and mental and emotional health are affected by the possibility of being rendered homeless when the extension in

his/her current placement expires and by the uncertainty in his/her situation. LH’s welfare is affected by his/her not knowing what will

happen to him/her. Notwithstanding the limitations on the directions the Court can give, it is appropriate for the Court to direct the

CFA to commit to making a funding application for LH in the event that any such gap occurs either in finding a supported placement, if

that can be sourced, or in securing rent allowance or a community welfare grant for a deposit/rent advance if required for a private

rented dwelling. That is not a direction that the funding will be provided but a direction that it will be sought. It will then be a matter

for the CFA under s. 45, having regard to LH’s individual needs, the availability of resources and the priority they place on the

provision of same, to assess whether it is appropriate to provide the funding.

Orders

24. I will therefore make the following directions as set out in the application for directions:-

a) Granted.

b) Refused.

c) Granted.

d) Granted.

e) Refused but direction at paragraph 17 above substituted.