District Court refuses Agency's request to dispense with parental consent for child passport under Child Care Act 1991.

[2017] IEDC 05

AN CHUIRT DUICHE THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

CHILD AND FAMILY AGENCY

APPLICANT

-AND-

A

RESPONDENT MOTHER

B

RESPONDENT FATHER

IN THE MATTER OF A CHILD, CHILD A

CHILD CARE ACT 1991 - SECTION 47 - NOTICE OF APPLICATION- FOR DIRECTIONS ON A QUESTION AFFECTING THE WELFARE OF A

CHILD

[Note: This version of the original decision delivered is prepared for the purpose of publication. Any changes from to the

original are intended only to be as to form and not as to substance, and are for the purpose of reducing the possibility of

identification of the children.]

Overview

1. Application under section 47 of the Child Care Act, 1991 to dispense with the consent of parents of a child in ‘voluntary care’ of

the Child and Family Agency [hereinafter referred to as the “Agency”] to the issue of a passport so that the child can go on a holiday

to another jurisdiction with the foster carers.

Introduction

2. The matter before the Court is with respect to Child A. The central issue before the Court is what orders would be in the child’s

best interests, having regard to the legal principles applicable for a child in care under section 4, 16, 24 and section 47 of the Child

Care Act, 1991.

3. The child was received into voluntary care of the Agency shortly after birth. The mother and father of the child did not register the

child’s birth and the Agency was unable to affect the registration of the child’s birth. The parents object to the proposed holiday. In

the case of the mother the objection is based on her view that the child is too young to travel this distance and it would affect her

access arrangements with the child and the child’s siblings. In the case of the father it is based on the fact that he has recently been

released from prison and is trying to build up a relationship with the child. Both parents are working towards establishing a good

relationship with the child so that that they are in a position to provide full time care for the child, as her parents.

4. The Court heard evidence from the allocated Social Worker.

Preliminary Observations

5. The parents were put on notice of the application to the court and were served with a copy of the Notice of Application under

section 47 together with a draft Grounding Affidavit of the Social Worker. The court hearing date was delayed by a national holiday.

The parents were not present or legally represented in the proceedings. Having heard evidence from Social Worker the Court

adjourned the matter to allow the parents to seek legal advice and representation in relation to the proceedings. They were not

present in court on the adjourned date.

6. The Agency has known about the proposed holiday for several months but only made the application to the Court five days before

the holiday was due to commence.

7. The evidence of the Social Worker was that the application was purposely delayed until the parents had fully co-operated with

registering the birth of the child and this process was largely achieved by the time they issued their proceedings. The Court was

informed that the mother was previously married to a man who is not the child’s father, and so the registration process was

complicated. The second named party to the within proceedings is the child’s father.

8. The Social Worker had three meetings with the parents in the previous month in relation to the proposed holiday however the

parents remained steadfast in their refusal to consent to the holiday. For this reason the Agency applied to dispense with their

consent to issue a passport for their child and the sundry other directions sought to enable the foster carers to bring the child with

them for a holiday.

9. The respondent mother has other children in the care of the Agency and it was acknowledged that she was served with minimal

notice of the proceedings. The Court was informed that it was initially thought that she would attend the initial Court proceedings.

The mother’s legal representatives were not present in court. The Court was informed that the Agency contacted the mother’s

previous legal representatives to alert them to the within application but was informed that the mother had not applied for civil legal

aid in this matter and so these solicitors had no instructions in relation to the application before the Court.

Legal Submissions

10. The Agency submitted that the Reception into Care Agreement executed by the respondent mother in accordance with section 4

of the Child Care Act, 1991 was in essence “open ended”. The first page of the Form estimated that the period of voluntary care was

to be for a period of “six months”. The parents did not request the Agency to return the child to their care when this period expired.

The allocated Social Worker to the case stated in her evidence that efforts were made to extend the voluntary care agreement when

she was allocated to the case, however the mother declined to do so stating that she needed time to discuss the matter with the

respondent father and in the event a second agreement was not signed by either parent.

11. It was submitted that the Agency had engaged with both parents and entered into “contracts” with them to ensure that they

have a “road map” towards family reunification This would enable the parents to understand the steps the Agency required them to

take to establish, to the satisfaction of the Agency, that they each had sufficient parental capacity to enable them to safely parent

their child. Both parents had addiction issues and were striving to gain traction on this problem so that reunification could be achieved

with the child. The “contracts” referred to in evidence were not produced to the Court.

12. Section 4 of the Child Care Act, 1991 provides for the voluntary reception into care of children with parental consent where the

Agency has concluded that children require care and protection and are unlikely to receive it unless they are taken into care.

However, section 4(2) recognizes that the Agency has no right to keep a child in its care if the parents wish to resume care of the

child. If the parents do not agree that the child needs to be in the care of the Agency, then the Agency must return the child to the

parents or apply for a Care Order.

13. Section 16 of the Child Care Act, 1991 makes it clear that the Agency must apply to court for a Care Order or Supervision Order if

they feel that the welfare of the child requires the child to be in their care. Section 4(3)(b) of the Child Care Act, 1991 provides that

the Agency must have regard to the wishes of a parent while the child is in voluntary care. The parent must therefore be consulted

on many care decisions for their child. Parental consent must be sought for medical treatment deemed necessary for the child, for

educational decisions such as signing forms consenting to school trips at home and away, for a child to have a passport, etc.

Therefore parental consent must be sought by the Agency for many child-rearing decisions. The legal control and responsibility for the

child is fragmented when a child is in foster care, however the views and consent requirements of parents in many day-to-day

decisions cannot be ignored by the Agency. The factsheet for parents of children in voluntary care (annexed to the Admission into

Care Form Agreement) specifically indicates that the parents retain their rights of custody and guardianship in respect of the child.

14. It is submitted to the Court that the Agency application is pursuant to section 47 of the Child Care Act, 1991 which enables the

Court to make the necessary Order dispensing with parental consent with regard to issuing the passport. The child was placed in the

care of the foster parents shortly after birth and is attached to them as her primary carers. Welfare concerns established that if the

child were separated from her primary care givers for a six week period it would be inimical to her welfare.

Evidence

15. The Social Worker’s evidence was that a pre-birth conference was convened in advance of the birth of the child and it was the

decision of the conference that the child should be received into care. The child was born in 2015 and an Admission to Care Form was

signed by the mother five days later. The probable duration of the care period was specified as being 6 months. This form contained

details regarding both the mother and father of the child. The form adduced indicates that the parents keep all their rights of custody

and guardianship of the child. The Social Worker indicated that as far as the Agency was concerned the agreement had not been

revoked by the parents, and they were offered the opportunity to execute a further Admission to Care agreement. The mother

declined to sign as she wished to discuss the matter with the child’s father. The child’s father was incarcerated and serving a prison

sentence at that time and had been in prison for most of the child’s life. Following his release from prison the Agency arranged for the

completion of a “Reunification Contract” with the parents. One of the conditions was that the parents overcame their respective

addictions. Each parent had a “slip” in their drug treatment but maintained their regular weekly access with the child. The Social

Worker spoke with the mother twice. The mother said that she felt the child was too young to travel on a holiday abroad to the

country in question. She had consented to her other children taking a trip with foster carers when they were four years old. The

father indicated that he did not want his access disturbed as he was trying to build up a bond with his child since his release from

prison. The Social Worker indicated that she outlined the consequences of that decision to each parent, that the child would have to

avail of respite foster care and would miss her primary carers for a six week period. However the parents did not relent in their

opposition to the holiday.

Legal Position

16. It is urged on the Court that pursuant to section 47 of the Child Care Act, 1991 the Court has the jurisdiction to make an Order

on any question affecting the welfare of a child in care.

“47.—Where 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”.

Discussion and Decision

17. The Child Care Act, 1991 is silent as to the optimal timing for any application to court under section 47 for children who are in the

voluntary care of the Agency. Section 24 of the Child Care Act, 1991 provides that the welfare of the child must be the first and

paramount consideration. The Agency’s own best practice guidelines at paragraph 2.3 provide:

“For consent to be valid, it must be informed consent. In general, this means that the person giving consent must

understand what they are being asked to consent to, be provided with information as to what their options are, the risks

and benefits of each option, the likely outcome and the consequences of the decision they make. Consent must be given

freely. The person should be told that they can obtain legal assistance if they wish.”

Paragraph 2.5 goes on to say that:

“Social Workers should bear in mind that consent does not last indefinitely. For example, if a parent consents to

voluntary care for their child, a definite start and end date should apply to this consent. It is the role of the Social

Worker to monitor this and make sure that steps are taken before the end date has been reached to ensure that the

child is not in care without valid consent”.

18. In this case the Social Worker’s evidence is that it is in the best interests of the child to accompany the foster parents on a trip

to another jurisdiction, which was planned last year. However, as the Agency was anxious to have the child’s birth registered first of

all, with parental co-operation, the Agency did not tell the parents about the proposed holiday until very recently. The parents had

only been made aware of the intended trip in the days leading up to the proceedings before the Court. They were given notice of the

application to court the week before, after having had three meetings with the Social Worker that month. They were advised that the

Agency would apply to court to dispense with their consent to issue a passport for the child, if they did not agree to sign the

passport forms, because the Agency were of the firm view that it was important and in the interests of the welfare of the child that

she accompany the foster carers on their planned trip abroad.

19. I am mindful that the Agency’s own best practice document at paragraph 3.1 notes that:

“The legal doctrine of natural justice and fair procedures aims to guarantee protection, transparency and efficiency for

people whose rights and interests are affected by the outcome of a process or decisions”.

Furthermore 3.1 of the Best Practice Guidance notes that:

“It is vital that fair procedures are adhered to. In a recent case, the High Court granted significant damages to an

individual as a result of a failure to provide him with fair procedures during a social work investigation. Social Workers

should be aware of the cases MQ v Robert Gleeson & Ors (1997) (the ‘Barr Judgment’) and P v A Secondary School (2010

and 2012)”.

At paragraph 4 of the Best Practice guidance it is stated that the rights of parents and fair procedures must be respected.

20. The Court adjourned the application of the Agency to today to ensure that the parents in this case would be allowed time to

consider the request and the application before the Court with the benefit of legal advice. I note that Judge Toale, in the case of

Child and Family Agency -v- M & Anor [2015] IEDC 03 expressed the view that he found it extraordinary that the CFA had no protocol

in place in relation to these matters. In that case the children were in the care of the Agency on an Interim Care Order. However in

this case the child is in care on foot of an expired voluntary care agreement.

21. Were the Court to make an Order dispensing with parental consent to the issuing of a passport to allow the child leave the

jurisdiction with the foster carers, in the face of the objection of the parents (who retain all their rights of custody and guardianship

of their child), it would be open to the parents to challenge any such decision. Equally the Agency could find itself in the position of

unlawfully retaining a child in their care, albeit in the care of foster carers holidaying outside the jurisdiction, should the parents

explicitly withdraw their voluntary consent during the period of the holiday.

22. Section 47 speaks of a child “in the care of the health board”. In this case the status of voluntary care agreement is questionable

in light of the fact that the Agreement period has expired and the parents have declined to formally enter into a further period in

voluntary care. The Agency’s own ‘best practice’ document is also relevant. It would appear that this application was left to the 11th

hour tactically. It was open to the Agency to apply for an Interim Care Order when the parents declined to extend the period in care

by signing a further Admission to Care Form.

23. Section 3(2)(b) of the Child Care Act, 1991 requires the Agency to have due regard to the rights of parents under the

Constitution or otherwise and to regard the welfare of the child as the first and paramount consideration, and secondly and in so far

as is practicable, give due consideration, having regard to his age and understanding to the wishes of the child and thirdly to have

regard to the principle that it is generally in the best interest of a child to be brought up in his own family. While this child is too

young to express a view, the other parts of section 3 are relevant.

24. The Agency has indicated in oral submissions that the welfare of the child would indicate that the issue of the birth certificate

was of vital importance to the child, and that the delay in notifying the parents regarding the holiday was appropriate in this instance.

25. The Constitutional and Article 8 Convention rights of both the parents and the child are engaged in this case. Article 42.1 of the

Constitution refers to ‘the inalienable right and duty of parents to provide for the religious and moral, intellectual, physical and social

education of their children.’ References to ‘welfare’ in the Child Care Act, 1991 are to be construed in these terms. I take particular

account of section 24 and section 47 of the Child Care Act, 1991. I also note that Denham J (as she then was) in North Western

Health Board v HW [2001] IR 616 said:

“Article 42.5 envisages, in exceptional cases, where parents fail in their duty to the child, that the State as guardian of

the common good shall by appropriate means endeavour to supply the place of the parents, but this is subject to the

rights of the child. It is clear that under Article 42.5 the State is the default parent and not the super parent”

26. There has been no finding by a court that these parents have, for physical or moral reasons, failed in their duty towards their

child or that the statutory threshold of relevant sections of the Child Care Act, 1991 have been evidentially established. These

parents entered into a voluntary agreement with the Agency shortly after the birth of their child. They declined to renew that

agreement but did not ask for their child to be returned to their care. However, they did not want the child to be taken abroad on

holidays for a six week period. They must be consulted on all parental decisions and declined to grant their consent. In the case of

F.H. v Judge Staunton [2013] IEHC 533 Hogan J stated:

“There is no doubt but that the loss of parental right – whether on a temporary or permanent basis – is, however, a

serious matter which the organs of the State should not lightly undertake: see, e.g., the comments to this effect of

Hardiman J in N v Health Service Executive [2006] IESC 60. Yet Article 42.5 envisages that there will be cases where this

step is objectively necessary to safeguard the child’s own constitutional rights. As O’Flaherty J observed in Southern

Health Board v CH [1996] 1 IR 219, 238 “the child’s welfare must always be of far graver concern to the Court. We

must, as judges, hearken to the constitutional command which mandates, as prime consideration, the interests of the

child in any legal proceedings”.

27. In this case it is not suggested that it is necessary to safeguard the child’s constitutional rights that she have a six week holiday,

it is however suggested that her welfare would be seriously impacted if she were to miss the care and attachment of her foster

carers for that period. The decision of the European Court of Human Rights in Yousef v Netherlands [2003] 1 FLR 210, is authority for

the proposition that where there is a tension between the Article 8 rights of the child, on the one hand, and the parent, on the other,

the rights of the child prevail.

28. However it would seem, from the Agency's own "best practice" to be unusual for the Agency to hold a child in section 4 'voluntary

care arrangements' for 2 years without a specific plan for either family reunification with the parents, or to determine the legal care

status of the child. The Social Worker’s evidence was that the parents have declined to sign a second Admission to Care Form. She

also stated that “contracts” had been entered into to allow for reunification. It was also her evidence that there was a delay in

informing the parents about the proposed trip abroad so as to ensure that they would comply with the birth registration process.

29. An 11th hour Application to court under section 47 of the Child Care Act, 1991 is now sought by the Agency requesting the Court

to give direction on the following question affecting the welfare of the said child:

A. That the consent of the respondent parents to the issue of passport facilities (or any other equivalent travel

document/s) to the above mentioned child be dispensed with;

B. That the Social Worker allocated to the above named child or other representative of the Applicant be authorised to

consent to same and direct the Department of Foreign Affairs Passport Office to issue the passport (or other equivalent

travel document/s) to the above mentioned child for the period of three years;

C. That the consent of the Respondent parents to the issue of an X Visa required to allow Child A travel on a holiday with

her foster carers to another jurisdiction be dispensed with;

D. The Social Worker allocated to the above named child or other representative of the Applicant be authorised to

consent to same and direct the appropriate Embassy to issue the Visa for the above mentioned child for a period

sufficient to allow travel with her foster carers on holidays to another jurisdiction for the period of time set out hereunder;

E. That the consent of the respondent parents of the above named child travelling on a holiday with her foster carer to

another jurisdiction be dispensed with;

F. That the Social Worker allocated to the above named child or other representative of the Applicant be authorised to

consent to same.

30. This application appears to be predicated upon the basis that the child’s ‘best interest’ will always trump a parental objection.

However this is neither fair nor reasonable in the circumstances of this case. The objections of the parents in this case, as fairly

articulated in the evidence of the social worker, are not unreasonable or irrational. The jurisprudence of the superior courts has

consistently stressed that the interests of children are not isolated from the interests of their parents. It was open to the Agency to

clarify the care status of the child at an earlier stage having regard to the child’s best interests. There is no certainty regarding the

care status of the child in this case. Accordingly, I refuse the relief's sought in the Application to court in the Notice of Application

seeking Orders in the above terms.

Judge Rosemary Horgan

March 2017