Care Proceedings

Cases

The Western Health board v. K.M.

[2001] 1 I.R. 729
Judgment of Mrs. Justice McGuinness delivered the 21st day of December 2001

This is an appeal from a judgment and order of the High Court (Finnegan J.) on a Consultative Case Stated. The question of law in the Case Stated was referred to the High Court pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961, by Judge Mary Devins of the District Court at the request of both the Applicant and the Respondent. The proceedings before the District Court concern a child who is in the care of the Applicant/Respondent pursuant to a Care Order made under Section 18 of the Child Care Act 1991. The Respondent/Appellant is the mother of the child. The Applicant / Respondent (“the Health Board”) seeks to place the child in the foster care of a relative of the Respondent / Appellant (“the mother”). This relative resides in England. The Health Board

-2-
has made an application to the District Court pursuant to Section 47 of the Child Care Act 1991 for a direction that the child be so placed.

The Consultative Case Stated is set out by the learned judge of the District Court as follows:
“(a) The proceedings herein come before me by way of an application pursuant to Section 47 of the Child Care Act 1991 for directions on the questions affecting the welfare of a child in the care of a Health Board and, more specifically ‘whether it would be in the best interests of the above named child Thomas M to be placed in foster care with a cousin of Karen M in the United Kingdom … At a hearing of the proceedings before me on the 28th day of February 2000 the direction sought herein by the Applicant was amended on consent to read as follows:-‘That the above named child Thomas M be placed in care with a cousin of Karen M in the United Kingdom’.
(b) When the matter came before me on the 28th day of February 2000 the following witnesses gave evidence at the hearing namely: for the Applicant, Aisling Ryan and for the Respondent, the Respondent herself The facts admitted or proved before me are as follows:
1. The infant Thomas M was born on the 19th day of May 1996. The Respondent, who is not married, is the infant’s mother. Arising from concerns felt by the Applicant due to the Respondent’s psychiatric condition and inability to care for the infant an Emergency Care Order was sought and obtained on the 7th day of June 1996, an Interim Care Order was sought and obtained on the 19th June 1996
-3-
and further Interim Care Orders were sought thereafter until the final hearing of the said care proceedings on the 22nd day of June 1997. On that occasion an order was made pursuant to Section 18 of the Child Care Act 1991 committing the infant to the care of the Applicant until he attained the age of eighteen years. The basis for the making of the said order was the Respondent’s inability to care for the said infant due to her ongoing psychiatric difficulties.
2. At all material times since the infant was first committed into the care of the Applicant he has been placed by the Applicant in the care of foster parents in the County of Mayo. At all material times the Applicant perceived the said placement as being a short term placement only as the said foster parents were not in a position to offer the infant long term fosterage. In or about the early part of 1999 the issue of the long term care of the infant was under active consideration by the Applicant herein. The Applicant was approached by a married couple resident in Kent, England, namely Imelda and Peter Hewitt. Imelda Hewitt is a cousin of the Respondent. The Hewitts indicated to the Applicant that they were interested in fostering the infant on a long-term basis. Once this had been indicated the Applicant arranged for an assessment to be carried out on the Hewitts by the childcare authority in England in whose functional area the Hewitts resided, namely Kent Social Services. The outcome of the said assessment was satisfactory. The witness for the Applicant gave evidence in her opinion as a professional (the said witness being a social worker employed by the Applicant) that it was generally better that children be
-4-
placed with relatives and it was her further opinion that the particular infant in this case should be placed with relatives and more particularly with the Hewitts in England In cross examination the witness gave evidence that while it would not be unusual for the relatives of a child in care to contact the Applicant with respect to placement of a child with them, that it would be unusual for such contact to be made where there was no relationship between the relatives and the parent or parents of the infant in question. She further gave evidence that as far as she was aware there was no relationship between the Hewitts and the Respondent. (sic) On the evidence of the witness for the Applicant Imelda Hewitt was aged somewhat under 50 and Peter Hewitt somewhat over 50. On further cross-examination the witness for the Applicant indicated that the possibility of arranging foster parents in this jurisdiction had been considered by the Applicant and that a family had been identified who resided in the County of Mayo. The witness went on to indicate that in the event that approval was not forthcoming for a placement abroad there would be a family available to take the infant in this jurisdiction on a long term basis.
3. The Respondent gave evidence in which she acknowledged that she had a serious medical problem and psychiatric difficulties over the years. She accepted that the infant had to be taken into care due to her condition whilst indicating that she still held on to the possibility that the infant (and a second child born subsequently to the infant the subject matter of these proceedings, also now in the care of the
-5-
Applicant) would some day be returned to her. The Respondent gave further evidence that Imelda Hewitt had only been in the briefest contact with her in recent years and had not made her aware of her and her husband’s interest in the infant being placed with them. The Respondent expressed the opinion that it was not in the best interests of the infant that it be placed in the care of the Hewitts in particular or more generally that he go to England. In response to a clarification which I sought from the Respondent, she indicated that she had no difficulty with the infant being in care locally as she would then be able to seem him regularly and as a way towards his return to her care as soon as possible. On cross-examination the Respondent agreed that she had had problems with her medication. She accepted that there had been difficulties with access in the past and that a lot of this was due to her fault although she also ascribed some fault to the Applicant. It was put to her that the medical advice was that the infant would not in the foreseeable future be returned to her care and she accepted that this was the situation at that moment but that she hoped that would change. The Respondent further gave evidence that she had been residing in this jurisdiction for the last seven years. She accepted that all her immediate family resided in England. She did not accept that the infant would have more contact with his extended family if he was in the care of a relative in England and gave evidence that neither her parents nor siblings had expressed interest in meeting the infant. She further gave evidence that the Hewitt’s had no contact with her parents or family in England.
-6-
(c) At the conclusion of the Respondent’s evidence I sought submissions from the legal representatives for the Applicant and the Respondent in respect of certain matters which concerned me. It had previously been indicated to me that both the Applicant and the Respondent were of the opinion that a question or questions of law arose in the proceedings before the Court in respect of the power of the Applicant, or in the alternative the Court, to place or direct the placement of an infant in the care of a Health Board pursuant to Section 18 of the Child Care Act 1991 with relatives or foster parents outside the State pursuant to the provisions of Section 36 of the Child Care Act 1991 and/or Section 47 of the Child Care Act 1991. They requested that I so state a case pursuant to the provisions of Section 52(1) of the Courts (Supplemental Provisions) Act 1961. I was of the opinion that the obtaining of a determination of the High Court in relation to the matters raised would be desirable. The proceedings were then adjourned, in the first instance to the 15th March 2000 for the purposes of enabling the parties to agree the questions of law to be referred to the High Court. The said agreed conditions are as set out at paragraph (d) hereunder.
(d) Accordingly the questions of law for the determination of the High Court are as follows:
In relation to a child who is in the care of a Health Board pursuant to Section 18 of the Child Care Act 1991:-

-7-
(i) Can the Health Board lawfully place the child with relatives or foster parents outside the State pursuant to the provisions of Section 36 of the said Act?
(ii) Can this Court lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the
provisions of Section 47 of the said Act?
(iii) If the answer to question (i) and/or (ii) above is Yes can the period for which the child is so placed be limited?”
The Case Stated is dated the 25th day of September 2000.
It is clear, as is accepted by both parties, that the questions posed in the Case Stated are not only of vital importance to the child and to his mother but also have far reaching implications both for the Applicant/Respondent and for all other Health Boards in the State.

The Decision of the High Court

The matter came on for hearing in the High Court before Finnegan J. (as he then was) who delivered a reserved judgment on 14th March 2001. Having considered the provisions of Section 36 of the Child Care Act 1991 in the context of the Act as a whole he held that the section required the Health Board to continue to exercise control and supervision over a child that was placed in its care and held that Section 36 did not empower a Health Board to place a child in care with relatives or foster parents outside the State. This aspect of the decision of the learned High Court Judge is not under appeal and is accepted as correct by both parties. There is therefore no need at this point to consider in any detail the reasons which led the learned High Court judge to this conclusion. In this connection it was pointed out in oral

-8-
argument to this Court by Senior Counsel for the Health Board that the original application to the District Court had been made pursuant to Section 47 of the 1991 Act. No application had been made pursuant to Section 36.

Finnegan J. went on to consider the terms of Section 47 of the Child Care Act 1991. He referred to the functions of the District Court under the 1991 Act and pointed out that under a number of Sections of that Act the Court might act of its own motion. He drew attention to the terms of Section 24 of the Act which provided that in any proceedings before a Court under the 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, should regard the welfare of the child as the first and paramount consideration. He went on to say:-

“The District Court accordingly it seems to me, is something more than a court of appeal and exercises something more than a supervisory jurisdiction. The sections which I mention allow the Court to act on its own motion and in particular Section 22. If the Court’s function was appellate or supervisory only, then it might well be appropriate to seek to construe Section 47 of the Act in a restrictive manner. However this Section is couched in the widest possible terms and I can find nothing in the Act insofar as the same deals with the powers, functions and duties of the District Court to suggest that a restrictive interpretation of Section 47 is appropriate. Unlike Section 36 there is no qualification requiring control and supervision in Section 47. It seems to me therefore that Section 47 empowers the District Court to do whatever it deems appropriate to achieve the policy of the Act as a whole and the objectives set out in Section 24 of the Act. Accordingly, I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Act”
-9-
The learned High Court judge went on to consider the terms of Section 40 of the Adoption Act 1952. I shall refer to that Section, as it has been affected by the judgment of the High Court in The State (At the Prosecution of K.M. and R.D.) v the Minister for Foreign Affairs, Marie Burke and the Attorney General [1979] IR 73, later in this judgment.

The learned High Court judge further found that in relation to Question (iii) of the Case Stated that:
“There is no limitation placed on the exercise by the District Court of its powers and accordingly I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Act and with or without the period for which the child is so placed being limited.”
He concluded that the answer to the questions posed in the Consultative Case Stated was as follows:
(i) No.
(ii) Yes
(iii) Yes.
He made an order accordingly on the 14th March 2001. It is against this judgment and order that the Appellant/Respondent has appealed to this Court.

Notice of Appeal

In her Notice of Appeal the Appellant seeks an order setting aside the relevant parts of the order of the High Court and in its place an order answering the questions (ii) and (iii)

-10-
posed in the Consultative Case Stated herein as “No”. In the written and oral submissions made to this Court on behalf of the Appellant reliance was in the main placed on the following grounds of appeal:-

“… that the learned trial judge erred in law and in fact or on a mixed question of law and fact as follows:-
(a) In holding that in the exercise of its jurisdiction pursuant to the Child Care Act 1991 the District Court exercises something more than a supervisory jurisdiction and that that finding justified interpreting Section 47 in other than in a restrictive manner.
(b) In holding that there was nothing in the Child Care Act 1991 requiring the restrictive interpretation of Section 47 of the said Act…
(c) In failing to properly construe the meaning of Section 47 of the Child Care Act 1991 in the light of the overall statutory powers and duties of the District Court under that legislation.
(d) In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully direct the placement of a child, placed in the care of the Health Board pursuant to Section 18 of the Child Care Act 1991, with relatives or foster parents outside the State pursuant to the provisions of Section 47 of the Child Care Act 1991.
(e) In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully place a child with relatives or foster parents outside the State, the learned trial judge failed to have proper regard to, or to properly interpret the statutory powers and duties of the District Court to monitor a child placed in care, for the entire of the period that the child remains in care…
-11-
(f) In holding that Section 47 of the Child Care Act 1991 empowers the District Court to lawfully place a child with relatives or foster parents outside the jurisdiction, the learned trial judge failed to correctly interpret the provisions of the 1991 Act in that he failed to have due regard to the fact that in so placing a child the District Court divests itself of all of its statutory functions and powers in relation to the child’s concern.
(g) In holding that a Health Board into whose care a child has been placed pursuant to the provisions of the Child Care Act 1991 is a guardian for the purposes of Section 40(3) of the Adoption Act 1952. Further, in holding that with Health Board’s approval, a child who comes within Section 40(3) of the said Act may be removed out of the State.”
The Statute

The issue before the Court, therefore, is the proper construction of Section 47 of the Child Care Act 1991. It is accepted by both parties that the section must be viewed within the context of the Act as a whole. The Child Care Act 1991 was enacted by the Oireachtas (following many years of discussion, consultation and pressure by persons and bodies interested in issues of child care) with the purpose of replacing and updating the provisions of the Children Act 1908, which had been described by O’Flaherty J. in this Court as perhaps having been “an enlightened piece of legislation when enacted” but now “showing its age”

(MF v Superintendent Ballymun Garda Station [1991] 1 IR 89).

While the present Child Care Act was enacted in 1991 its main provisions were not brought into effect until 1995, when by the Child Care Act 1991 (Commencement) Order

-12-
1995 (S.I. No. 258/1995) Section 4, sub-sections (3) and (4) of Section 6, Sections 12 to 48, Sections 68 and 70 and Sections 75 to 78 were brought into operation from the 31st day of October 1995. In summary these were the provisions covering the placing of children in voluntary care, the bringing of children into care in emergency situations, arid the making of long term care and supervision orders. The relevant sections in Part V deal with the jurisdiction, powers and procedures of the Court in relation to child care proceedings, while Part VI, which includes both Section 36 and Section 47, in general sets out the arrangements that may be made by Health Boards in regard to children in their care,

The long title of the Act sets out that it is “an Act to provide for the care and protection of children and for related matters “.
The general function of the Health Board under the Act is set out in Section 3 which provides:
“3(1) It 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, and
(II) In so far as it is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child; and
-13-
(c) have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.
(3) A Health Board shall, in addition to any other function assigned to it under this Act or any other enactment, provide child care and family support services, and may provide and maintain premises and make such other provision as it considers necessary or desirable for such purposes, subject to any general directions given by the Minister under Section 69.
(4) …”
A number of other sections of the Act are relevant to the matters at issue in these proceedings. They are as follows:-
“9(1) A Health Board may, subject to any general directions given by the Minister and on such terms or conditions as it sees fit, make arrangements with voluntary bodies or other persons for the provision by those bodies or other persons on behalf of the Health Board of child care and family support services which the Board is empowered to provide under this Act.
(2) Nothing in this section shall empower a Health Board to delegate to a voluntary body or any other person the duty conferred on it under Section 4 to receive certain children into care or the power to apply for an order under Part III, IV or VI
(10) A Health Board may, subject to any general directions given by the Minister and on such terms or conditions as he thinks fit assist a voluntary body or any other person who provides or proposes to provide a child care or family support service similar or ancillary to a service which the Health Board may provide under this Act:-
(a) by a periodic contribution to funds of the body or person;
(b) by a grant;
(c) by a contribution in kind (whether by way of materials or labour or any other service).”
Part IV Care Proceedings

“16. Where it appears to a Health Board with respect to a child who resides or is found in its area that he 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 duly of the Health Board to make application for a Care Order or a Supervision Order, as it thinks fit.
18(1) Where, on the application of a Health Board with respect to a child who resides or is found in its area, the Court is satisfied that –
(a) the child has been or is being assaulted, ill treated, neglected or sexually abused, or
(b) the child’s health, development or welfare has been or is being avoidably impaired or neglected, or
(c) the child’s health, development or welfare is likely to be avoidably impaired or neglected, And that the child requires care or protection which he is unlikely to receive unless the Court makes an order under this section, the Court
-15-
may make an order in this Act referred to as a (“Care Order”) in respect of the child.
(2) A Care Order shall commit the child to the care of the Health Board for so long as he remains a child or for such shorter period as the Court may determine and, in such case, the Court may, of its own motion or on the application of any person, extend the operation of the order if the Court is satisfied that the grounds for the making of a Care Order continue to exist with respect to the child
(3) Where a Care Order is in force, the Health Board shall –
(a) have the right 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;
(ii) give a consent to any necessary medical or psychiatric examination, treatment or assessment with respect to the child; and
(iii) give consent to the issue of a passport to the child, or to the provision of passport facilities for him, to enable him to travel abroad for a limited period.
(4) … (the remainder of the section is not relevant).”
-16-
Part V Jurisdiction and Procedure

“24. In 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;
(b) …
28.(1) The District Court and the Circuit Court on appeal from the District Court shall have jurisdiction to hear and determine proceedings under Part III, IV or VI.
(2) Proceedings under Part III, IV or VI may be brought, heard and determined before and by a justice of the District Court for the time being assigned to the district court district where the child resides or is for the time being.”
Part VI Children in the Care of Health Boards

“36.(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 childrens’ 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
-17-
(c) in the case of a child who may eligible for adoption under the Adoption Acts 1952 to 1988 by placing him with a suitable
person with a view to his adoption, or
(d) by making such other suitable arrangements (which may include placing the child with a relative) as the Health Board
thinks proper.
(2) In this Act, foster parent’ means a person other than a relative of a child who is taking care of the child on behalf of the Health
Board in accordance with regulations made under Section 39 and ‘foster care’ shall be construed accordingly.
(3) Nothing in this section shall prevent a Health Board sending a child in its care to any hospital or to any institution which provides
nursing or care for children suffering from physical or mental disability.
(4) Where a child is in the care of the 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.”
Submissions of Counsel

Senior Counsel for the Appellant, Ms O’Toole, submitted that the learned High Court judge had erred in holding that in child care matters the District Court was “something more than a court of appeal” and exercised “something more than a supervisory jurisdiction “. She contended that in the context of the scheme of the 1991 Act Section 47 should be given a restrictive interpretation. The District Court, she submitted, was in no sense a Court of

-18-
Appeal under the 1991 Act; the Act did not envisage appeals being made from the decisions of the Health Board to the District Court. The jurisdiction of the District Court was that of a Court of first instance as set out in Section 28 (quoted above).

Counsel for the Appellant accepted that the District Court had a supervisory jurisdiction which was reflected in the Court’s powers inter alia to appoint a guardian ad litem for a child, to procure necessary reports, and to provide for parental access to a child. However, this supervisory jurisdiction extended, she submitted, solely to matters within the parameters of the 1991 Act; Section 47 should not be construed to mean that the District Court was at large in making wide ranging orders affecting children who are in the care of the Health Board.

Ms O’Toole stressed that the whole structure of the child care system under the 1991 Act was considerably more restrictive than the former “Fit Person Order” régime under the Children Act 1908. Under the 1991 Act only a Health Board could apply to the District Court for an order placing a child in long term care, and only a Health Board could hold a child in care. While, under Section 36, the Health Board was empowered to take various steps such as placing a child with a foster parent or in residential care, or making other suitable arrangements, the child remained in the care of the Health Board throughout and the Health Board was responsible for his or her welfare. The District Court had a supervisory jurisdiction within this régime and within this régime only. Section 47, Counsel argued, enabled the District Court to make necessary orders (in the interests of the child) of a type not necessarily specified in the other sections of the Act, but these orders must remain within the context of the child being in the care and under the actual supervision of the Health Board.

Counsel for the Appellant submitted that if a child such as the child in question in these proceedings was placed with relatives in a foreign jurisdiction, that child was no longer in any real sense in the care of or under the supervision of the Health Board, In those

-19-
circumstances the supervisory jurisdiction of the District Court over the child would become in practical terms a nullity. The District Court might make orders affecting the child but would have no way of enforcing such orders. To all intents and purposes, once the child was placed outside the jurisdiction, neither the Health Board nor the District Court could fulfil their respective roles in promoting and overseeing the welfare of the child.

In summary Ms O’Toole submitted that the District Court could not lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of Section 47 and that to do so was ultra vires its power.

Senior Counsel for the Western Health Board, Mr. Durcan, accepted that Section 47 of the 1991 Act must be construed in the context of the Act but submitted that it should be construed in the context of the Act as a whole and of its general purpose rather than restrictively in the context of Part VI alone. The purpose of the Act was summarised in its long title – an Act to provide for the care and protection of children – and in Section 3 the Health Board was enjoined to regard the welfare of the child as the first and paramount consideration. It was notable that the wording of Section 47 closely resembled the wording of Section 11 of the Guardianship of Infants Act 1964, which also operated in a scheme where the welfare of the child was paramount. Section 11 had always been interpreted very widely and in a purposive way; the same approach should apply in the construction of Section 47 of the 1991 Act. This had been the approach taken by the learned High Court judge.

In arguing for a purposive interpretation of the section Mr Durcan submitted that the Act was a remedial or protective statute intended to protect children and that as such it should be given a liberal and purposive interpretation in accordance with the principles enunciated by Walsh J. in the case of Bank of Ireland v Purcell [1989] IR 327. Further the Act should be construed in the light of the realities of every day life and the variety of circumstances in which the need to protect children may arise. This view, he said, found support in the words

-20-
of Keane J. (as he then was) in the case of DPP (Houlihan) v P.G. [1996] IR 281 where the learned judge stated in regard to certain provisions of the Children Act 1908:

“At the same time, as was properly said in the course of argument, they must be applied in the light of the Constitution, and, to the extent that it can be done without violence to the language of the enactment, in a matter which reflects the reality of life today.”
Mr. Durcan also suggested that the case of M.F. v Superintendent Ballvmun Garda Station [1991] 1 IR 281 was authority for the proposition that the interpretation to be placed upon statutory provisions designed to protect children should be reached on foot of principles particularly derived from the clear constitutional protection of the interests of children in any legal proceedings.

It should, Mr. Durcan submitted, not be forgotten that the Health Board had made the current application to the District Court precisely because the Board believed on the evidence available to it that the proposed placement was in the best interests of the child concerned.

Counsel for the Health Board also submitted that the Child Care Act 1991 was intended to be a comprehensive code for the protection of children and was designed to operate effectively in the context of the realities of life in Ireland at the end of the twentieth century. Two aspects of the reality of life in this country were firstly a long history of emigration and secondly increasing mobility in regard to employment opportunities. Mr. Durcan pointed to the example of the close economic and social relationship between this jurisdiction and Northern Ireland. Many families in border areas would have close relatives on the other side of the border in another jurisdiction, albeit perhaps only a number of miles from their own home. Equally there would be many cases where families would reside on one side of the border for a number of years but would then move to the other side perhaps

-21-
for reasons concerned with job or housing opportunities. It must also be accepted that the increasing mobility of persons between the various jurisdictions within the European Union was not only permitted but positively encouraged.

It was, said Mr. Durcan, against this background that the Court should view the construction of the provisions of the Child Care Act 1991 as put forward by the Appellant. The Appellant contended that a child could not, no matter how compelling the circumstances to the contrary, be placed with a relative or foster parent outside the jurisdiction. This would mean that a child whose family lived in Donegal could not be placed with relatives who lived in Derry even if this was the course of action which clearly best promoted the welfare of that child. It would equally mean that a foster family who had had a child in their care for a number of years and who were obliged to move to another jurisdiction for employment purposes could not bring their foster child with them even though the child might have integrated into their family and even though movement to another foster family might be clearly detrimental to the child’s interests. If the interpretation of Section 47 put forward by the Appellant was correct in stating that such placement outside the jurisdiction was prohibited because it would place the child outside the control of the Health Board and/or the District Court, then it would appear that such a course of action could not take place even if the parent or parents consented to it, since such consent would not remedy the suggested difficulty in regard to the lack of continuing control.

Mr. Durcan submitted that the effect of the construction contended for by the Appellant would be that in a significant number of cases the course of action which would best promote the welfare of the child would not be available to the Health Board or indeed to the District Court dealing with the care application. The Respondent submitted that such a situation could never have been intended by the legislature, would be detrimental to the

-22-
welfare of children and was not required by a proper purposive interpretation of the provisions of Section 47 and of the Child Care Act as a whole.

In regard to the provisions of Section 47 itself Counsel for the Health Board stressed that the first and most striking thing about the section was the breadth of the language which was used. The second was the striking similarity between the wording of the section and that used in Section 11 of the Guardianship of Infants Act 1964. This surely indicated that it must have been intended by the Oireachtas that the Court when exercising jurisdiction under Section 47 of the 1991 Act would have the same wide ranging powers in regard to the welfare of children as would be the case in disputes between parents pursuant to Section 11 of the 1964 Act. This interpretation was also consistent with the approach of McCracken J. in interpreting the section in Eastern Health Board v McDonnell [1999] 1 IR 174

Finally Mr. Durcan pointed out that in many cases Health Boards made arrangements to place children with particular needs in residential care or in foster care outside their own functional area, and also outside the actual jurisdiction of the particular District Court which had made the Care Order. This was done by a system of co-operation between the various Health Boards, but if the strict approach advocated by the Appellant were to be followed even these placements would be called in question. There was also already a high level of co-operation between the Health Boards in this country and the child care authorities in the United Kingdom. The level of such inter communication and co-operation between the authorities here and in the proposed foreign jurisdiction was a matter which should and would be taken into account by the District Court in deciding whether to make an order which involved placing a child outside the State.

-23
Conclusions

The first question that arises is whether the Statute under consideration is to be given a restrictive or a purposive interpretation. In Bank of Ireland v Purcell [1989] IR 327 this Court considered the proper approach to the construction of the Family Home Protection Act1976. In his judgment Walsh J. (with whom Finlay C.J., Griffin J., Hederman J. and McCarthy J. agreed) stated (at page 333 of the report):-

“The Family Home Protection Act 1976 is a remedial social statute enacted to protect the interest of the non-owning spouse in the family home and to deal with and to seek to remedy the social problem which was created or could be created by the fact that the spouse who owned the family home could effectively put the other spouse out on the street by selling it or mortgaging it. This was sometimes done out of vindictiveness and the other spouse had no redress. Most frequently the victimised spouse was the wife. She and her children could be left to fend for themselves so far as accommodation was concerned. It was to secure the position of such a spouse that the Act of 1976 was passed … This Statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done.”
I have already very briefly set out the history of the enactment of the Child Care Act 1991. There can be no doubt that it is a remedial social statute, and was seen to be such by all who were affected by its provisions. Its social and remedial importance was accepted by all, including this Court and more particularly the District Court, who had for many years striven to operate the provisions of the Children Act 1908 in a way which made sense in the latter part of the twentieth century. This is borne out in the decisions relied upon by Mr. Durcan in

-24-
the cases of DPP (Houlihan) v PG [1996] 1 IR 281 and MF v Superintendent Ballymun Garda Station [1991] 1 IR 281.

I would therefore accept the submission of the Appellant that the construction of the 1991 Act as a whole should be approached in a purposive manner and that the Act, as stated by Walsh J. should be construed as widely and liberally as can fairly be done.

This does not, of course, imply that Section 47 can be looked at apart from its context in the general framework of the Act, or that the widely drawn terms of the section mean that the District Court is simply at large in the orders it may make pursuant to the section. Counsel for the Appellant is correct in laying stress on the fact that the child in question remains in the care of the Western Health Board pursuant to the Order of the District Court made on 22nd June 1997. Both the Health Board and the Court must at all times bear that fact in mind when making any proposals for the future care of the child.

Counsel for the Appellant is, of course, also correct in her submission that the District Court is not an appellate Court under the Statute; that is clear from the terms of Section 28. It may well be that in his judgment the learned High Court judge did not intend his use of the word appellate to be understood in a strictly technical sense; he may have used the word appellate as more or less an equivalent of “supervisory” – a word which he correctly uses to describe the District Court’s jurisdiction under the Act. The word “appellate” is, however, used in error.

There is a scarcity of authority on the interpretation of Section 47 of the 1991 Act. The only authority which was opened to this Court (and I can trace no other) is the judgment of McCracken J. in the High Court in the case of Eastern Health Board v McDonnell [1999] I IR 174. In that case case the learned High Court judge considered whether the District Court judge in question had the power under Section 47 to make wide ranging and detailed orders stretching to the future in regard to the Health Board’s “care plan” for a child.

-25-
McCracken J. accepted that the judge had such power. In construing Section 47 McCracken J. stated (at page 184 of the report):

“In my view Section 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 Section 47 is that it is intended to give the overall control of children in care to the District Court.”
In his judgment McCracken J. also stressed that both the Health Board, under Section 3 of the Act, and separately the District Court, under Section 24 of the Act, were enjoined to observe at all times the paramountcy of the welfare of the child. However, while local authorities and Health Boards must always have regard to the constitutional rights of the individual child (and other interested parties), as McCracken J. points out at Pg. 183, it is ultimately the function of the Courts to ensure that the guarantees given to an individual child are upheld.

While this authority is not, of course, binding on this Court it must be treated with considerable respect. A very similar approach to the construction of Section 47 was taken by the learned trial judge in the judgment now under appeal. I would in the main share the views of both learned judges as to the construction of the section.

A number of English authorities were mentioned by Counsel in the course of argument in this Court, but it is clear that these are not of great assistance since the English Children Act 1980 does not contain any section comparable to Section 47 of the Act of 1991. The House of Lords in In Re M & H (Minors) [1988] 12 FLR 431 held that the statutory regime in respect of children in care in England did not admit judicial supervision or review

-26-
of the merits of decisions made by local authorities in respect of children in their care, whether such review was sought under the inherent or the statutory jurisdiction of the Court. Interestingly this position in English law was found to be in breach of Articles 6 and 8 of the European Convention on Human Rights in the case of R v United Kingdom [1988]12 FLR 445.

In this jurisdiction both children and parents enjoy constitutional rights. The Oireachtas has rightly drawn attention to these rights in several sections of the 1991 Act. It is ultimately for the Court and not for the Health Board to protect and enforce these constitutional rights in respect of children who are in care. This can conveniently be done through the powers given in Section 47 of the Act. In my view these powers include a power to direct or permit the placement of a child outside the State where the evidence before the Court indicates that such a placement is truly in the best interests of the child.

Such an order, however, should be made rarely and with considerable caution. The child in question is, as was stressed by Counsel for the Appellant, in the care of and under the supervision of the Health Board, and the Health Board will continue to have responsibility for his welfare. The original Care Order was made by the District Court; the supervisory role of that Court should to the greatest degree possible be maintained.

Before any order placing a child outside the State is made, therefore, the judge of the District Court to whom such an application has been made should carefully weigh all relevant factors. These would include, inter alia, the following:

1. The constitutional rights both of the child and of his or her parents.
2. The parameters of the law regarding children in the jurisdiction in which it is proposed the child should live. For example, does the principle that the welfare of the child is paramount apply? Are the normal principles of the
-27-
comity of courts accepted? Is it likely that the orders of the Irish court will be recognised and enforced?
3. Is the country concerned a signatory to the Hague and/or Luxembourg Conventions on Child Abduction?
4. Is there already in place a system of co-operation between the child care authorities in the proposed jurisdiction and the Health Boards in their role as child care authorities in this jurisdiction or can such a system be readily established?
5. If the child is placed abroad will access to the child by the natural parent or parents be a practical possibility in terms both of distance and of expense?
6. Is there a reasonable possibility of using either undertakings or mirror orders (the use of which has been accepted by this Court in Hague Convention cases) to make the position of the child and of the relevant Health Board more secure?
This list is by no means exhaustive. All factors relevant to the welfare of the child and to the constitutional rights of all parties must form a crucial part of the consideration of the District Court when deciding whether or not to make the order proposed. Relevant evidence should be provided to the District Court on the lines suggested above to enable the Court to make an informed decision as to which course is most conducive to the welfare of the child.

In the final event, the District Court is bound by Section 24 of the Act of 1991. If after careful scrutiny the evidence before the Court shows that a placement outside the jurisdiction is in the best interests of the welfare of the child concerned, the District Court has in my view power under Section 47 of the 1991 Act to permit or direct such a placement.

-28-
As far as question (iii) in the case stated is concerned, it is clear that the District Court must also have the power to limit the period for which the child is so placed if, in the opinion of the Court, such a limitation is in the best interests of the child.

One further issue remains. It was submitted in the Court below and again in this Court by Counsel for the Appellant/Respondent that the child in question in the District Court proceedings, having been born on the 19th day of May 1996 and being under seven years of age, is affected by Section 40 of the Adoption Act 1952. The question therefore arises as to whether the power exercisable by the District Court under Section 47 of the 1992 Act may be negatived in the case of a child under the age of seven by the terms of Section 40 of the Adoption Act 1952. This section as originally passed by the Oireachtas read as follows:

“40 (1)No person shall remove out of the State a child under seven years of age who is an Irish citizen or cause or permits such removal.
(2) Sub-section (1) shall not apply to the removal of an illegitimate child under one year of age by or with the approval of the mother or, if the mother is dead, of a relative for the purpose of residing with the mother or a relative outside the State.
(3) Sub-section (1) shall not apply to the removal of a child (not being an illegitimate child under one year of age) by or with the approval of a parent, guardian or relative of the child.
(4) A person who contravenes this section shall be guilty of an offence and shall be liable on summary conviction to imprisonment for a term not exceeding twelve months or to a fine not exceeding £100 or to both.”
This section is thus cited by Finnegan J. in his judgment in the Court below.
-29-
Unfortunately it appears that the attention of the learned trial judge was not drawn to the decision of the High Court (Finlay P. as he then was) in the State (M & D) v The Minister for Foreign Affairs and Others [1979] IR 73 in which it was held that the provisions of sub-section (2) and the words in parenthesis in sub-section (3) of Section 40 of the Act of 1952 were an infringement of the personal right of the citizen to travel outside the State and, accordingly, should be declared invalid having regard to the provisions of the Constitution. That case concerned a child of an unmarried couple where it was proposed with the consent of both parents that the child should travel to Nigeria and reside there.

However Section 40 sub-section (1) and the substantive part of sub-section (3) remain in force. The learned trial judge dealt with the matter as follows:
“Having regard to the definition of ‘guardian’ in the Adoption Act 1952 Section 2, 1 am satisfied that a Health Board in respect of which a Care Order has been made is a guardian for the purposes of Section 40(3) of that Act and with the Health Board’s approval a child (other than an illegitimate child under one year of age) may be removed out of the State. In relation to a child in care to whom Section 40(2) applies while the Health Board has the like control as if it where his parent under the Child Care Act 1991 Section 18(3)(a) this has not the effect of displacing the mother for the purposes of approval: the approval of the mother and not the Health Board is required in respect of such a child.”
Clearly since sub-section (2) has been held to be unconstitutional the learned judge’s reference to an illegitimate child under one year of age and to a child in care to whom Section 40(2) applies are no longer applicable. There remains the question as to whether the Health Board is a proper person to give approval under Section 40(3).

-30-
At the time of the enactment of the Adoption Act 1952, which was the first legislation permitting legal adoption in this State, a particular problem had arisen by which perspective adopters from other jurisdictions, the majority from the United States, were taking Irish infants abroad for the purpose of adoption. In the main these were infants born to unmarried mothers who in the circumstances of the time felt themselves unable to care for their own children. There was little or no enquiry or assessment as to the suitability of the families or environments to which these infants were being brought and no evidence as to whether their removal from the State was in the best interests of their welfare. It was to cure that particular mischief that the Oireachtas enacted Section 40. It is, of course, many years since any such situation existed in this country, although parallel situations have arisen in other jurisdictions.

It is clear that Section 40 is not addressed to the situation which applies in the instant case where the proposal is that the child be placed with relatives who have been fully assessed by the competent Child Care Authority in the United Kingdom, and where the entire situation is being fully investigated by the District Court. The powers of the Health Board in regard to a child who is the subject of a Care Order are set out in Section 18(3) of the Act of 1991. This sub-section has been recited above. The Health Board is stated to have “the like control over the child as if it were his parent”, may decide the type of care to be provided for the child, may give consent to any necessary medical or psychiatric examination, and may give consent to the issue of a passport.

“Guardian” in relation to a child is defined in Section 3 of the Adoption Act 1952 as meaning “a person appointed, according to law, to be guardian of his person by deed or will or by Order of a Court of competent jurisdiction “. Under the provisions of the subsequent 1991 Act the District Court is the Court of competent jurisdiction to make a Care Order which transfers the majority of the powers of a parent or guardian to the relevant Health Board. Under Section 47 the District Court has the requisite power to “give such directions

-31-
and make such Order on any question affecting the welfare of the child as it thinks proper “. In my view, in a situation where a child is in care pursuant to a Care Order, this power in the District Court would be sufficient to enable the District Court itself to consent to the placement of the child outside the jurisdiction within the terms of Section 40 of the Adoption Act 1952.

Accordingly I would dismiss the appeal and affirm the Order of the learned High Court judge. The answers to the questions posed in the Case Stated by the judge of the District Court are accordingly:

(i) No

(ii) Yes

(iii) Yes.

The Child and Family Agency -v- L.B. & anor

 

[2018] IEHC 423 (12 July 2018)

JUDGMENT of Mr. Justice MacGrath delivered on the 12th day of July, 2018.
1. The applicant has applied to the District Court for an order under s. 18 of the Child Care Act 1991, as amended (“the Act of 1991”), that A.B., the child of the respondents, who was born on 22nd December, 2016, be made subject to an order committing her to the care of the applicant for two years. The application is opposed by legal representatives acting on behalf of the child’s mother, the first respondent. Having considered the evidence and various reports submitted to him, District Judge O’Leary made an order that the child be placed in the care of the applicant for a period of six months from 22nd December, 2017, pending the determination of certain matters of law upon which he has sought the opinion of this Court by way of a consultative case stated pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 dated 22nd December, 2017.

2. In the case stated the judge made the following findings of fact:-

“(i) There is a presumption that the child’s welfare is best provided for by being parented by a biological parent;
(ii) The first-named Respondent being the female parent in this case is a loving concerned conscientious mother who on such limited evidence as is before me cannot, due to mild intellectual disability among or in combination with other significant factors, provide adequate care for the child in the absence of either appropriate family support or an unascertained level of non-family support with basic care of the child;

(iii) The second-named Respondent being the male parent in this case takes no part in the care of the child or in these proceedings, although a party to and notified of them;

(iv) On such evidence as I have, appropriate family support is not available to the first-named Respondent,

(v) The evidence before me was to the effect that the content and level of the non-family support necessary for and appropriate to a parent in such circumstances are unique to that parent;

(vi) The cost of carrying out an assessment of the unique weaknesses and strengths of the parent or parents and the effect of their interaction on the parent’s capacity in this case is uncertain but in any case is beyond the capacity of the parent in this case whose income is her Disability Allowance;

(vii) The effect of the basic care of the child being provided by professional services on the emotional and other development of the child has not been ascertained and is very significant having regard to the constitutional rights of the child to an opportunity for full personal development.”

3. District Judge O’Leary stated that he was minded to make orders under s. 47 of the Act of 1991 in the terms contained in the questions framed by him, as follows:-
“Am I entitled to make orders under S.47 of the Child Care Act 1991 as amended directing the Child and Family Agency to:

1. Ascertain the cost of carrying out an appropriate assessment as to what services, if any, would be required and suffice to enable the first-named Respondent to parent the child to the maximum of her ability, having regard to her limitations and strengths and her rights as provided for by legislation, Bunreacht na hÉireann, and the European Convention on Human Rights, including in so far as her rights under the Convention are extended or defined by the International Convention on Rights of Persons with Disabilities;
2. Carry out such an assessment;

3. Provide such services as may be indicated by such an assessment, in the event that such assessment indicates that such services will enhance her capacity for parenting sufficiently to justify the provision of such services and that such parenting is in the interests of the child.”

4. The mother and her child were admitted to a parent and infant unit at the Bessborough Centre in January, 2017 when the child was three weeks old. The child’s father was admitted at the same time but was later suspended as a result of threatening behaviour. The mother and child were discharged from Bessborough on 25th April, 2017 and an interim care order was made on 26th April, 2017. The discharge report recommended that the child be made the subject of a long term care order because, despite her best efforts, L.B. had not been able to demonstrate capacity to safely and consistently parent (a decision stated not to have been lightly made), and that if the child remained in the care of her mother she would not obtain a healthy psychosocial development and significant aspects of her care would be neglected or placed at risk.
5. At an early stage of the proceedings, the District Judge requested that a report be prepared by a psychologist pursuant to s. 27 of the Act of 1991. This section empowers the court to “give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the child”. A psychologist prepared a report in which he accepted conclusions of an earlier report, known as “the Bessborough report”, that L.B. did not have the capacity to provide a safe and appropriate level of parenting for her daughter such as to facilitate a reasonable emotional and physical developmental trajectory.

6. It is submitted on behalf of the applicant that the report obtained from the psychologist was made with the express purpose of identifying the supports, if any, which would be sufficient or necessary to allow the mother to parent her child on a full and part time basis. The applicant contends that the answer to the questions in the case stated should be that the Court is unable to answer them or alternatively that they should be answered in the negative. The respondent requests the Court to answer the questions in the affirmative.
Section 52 of the Courts (Supplemental Provisions) Act 1961
7. Section 52(1) of the Courts (Supplemental Provisions) Act 1961 (“the Act of 1961”) provides:-

“A justice of the District Court shall, if requested by any person who has been heard in any proceedings whatsoever before him (other than proceedings relating to an indictable offence which is not being dealt with summarily by the court) unless he consider the request frivolous, and may (without request) refer any question of law arising in such proceedings to the High Court for determination.”

Section 47 of the Child Care Act 1991
8. Section 47 of the Act of 1991 provides:-
“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.”

Article 42A of Bunreacht na hÉireann
9. The thirty-first amendment of the Constitution inserted Article 42A which provides:-
“1 The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.
2 1° In exceptional cases, where the parents, regardless of their marital status, fail in their duty towards their children to such extent that the safety or welfare of any of their children is likely to be prejudicially affected, the State as guardian of the common good shall, by proportionate means as provided by law, endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

2° Provision shall be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their duty towards the child and where the best interests of the child so require.

3 Provision shall be made by law for the voluntary placement for adoption and the adoption of any child.

4 1° Provision shall be made by law that in the resolution of all proceedings-

i brought by the State, as guardian of the common good, for the purpose of preventing the safety and welfare of any child from being prejudicially affected, or
ii concerning the adoption, guardianship or custody of, or access to, any child,

the best interests of the child shall be the paramount consideration.
2° Provision shall be made by law for securing, as far as practicable, that in all proceedings referred to in subsection 1° of this section in respect of any child who is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age and maturity of the child.”

The applicant’s case – the case stated procedure, jurisdiction and substantive issue
10. The applicant contends that both the existence and the application of a power under s. 47 requires, as a matter of fact, that the welfare of the child be directly engaged and that no evidence pertaining to the child and no facts in relation to the child’s welfare have been found by the District Judge. It therefore follows that this Court cannot assess whether s. 47 “arises in these proceedings” pursuant to s. 52 of the Act of 1951. A necessary prerequisite to the stating of the consultative case is that the District Judge must hear evidence and make findings of fact based on that evidence. Those findings must be relevant to the point of law on which clarification is sought and should be clearly outlined and sufficiently identified in the case stated, to enable this Court to understand how, or whether, the question posed can be said to arise. These principles reflect the jurisprudence concerning case stated procedures and it is submitted that it is a procedure that should not be used to address questions which are general, hypothetical or moot. That this is so, even in respect of issues of statutory interpretation, it is submitted, is reflected in the decision of McMahon J. inO’Neill v. Butler[1979] I.L.R.M. 243, where he observed at p. 244:-
“The power of a District Justice under section 52 of the Courts (Supplemental Provisions) Act, 1961 is to refer to the High Court a question of law arising in proceedings before him by reference to the facts found by him. He cannot ask the High Court to define generally and without reference to particular facts the meaning of expressions used in a statute.”
11. InDirector of Public Prosecutions (Travers) v. Brennan[1998] 4 I.R. 67, Lynch J., with whom Hamilton C.J. and Keane J. agreed, stated as follows at p. 70:-
“The proper procedure leading to the stating of a consultative case for the opinion of the Superior Courts is for the District Judge to hear all the evidence relevant to the point of law arising, to find the facts relevant to such point of law in the light of such evidence, then to state the case posing the questions appropriate to elucidate the point of law and finally, on receiving the answers to those questions to decide the matter before him on the basis of those answers.”
12. This was applied by Hedigan J. inDirector of Public Prosecutions (Tormley) v. Gillespie[2011] IEHC 236. He held that because a question as formulated was a question of fact and not a question of law, the appropriate course of action was to refer the question back to the District Judge for his decision on the facts.
13. InO’Shea v. West Wood Club Limited[2015] IEHC 24 and in the context of an issue as to whether jurisdiction arose, O’Malley J. stated, at paras. 61 and 63:-

“61. The fact that a question in a case stated raises a jurisdictional issue does not mean that there is no requirement to set out the facts giving rise to the issue. There are many cases where the District Court has asked questions as to jurisdiction, but there is always a factual substratum explaining why the question has arisen. Indeed, the issue of jurisdiction often depends on the facts of a case.
[…]

63. It is not possible for this court to answer a question on a point of law without knowing whether it actually arises as an issue. To do so would be to engage in a moot.”

14. In this context, the applicant emphasises the wording of s. 47 of the Act of 1991, a provision applicable to questions “affecting the welfare of the child”. It is submitted that it is not possible for this Court to answer whether s. 47 can be employed in a particular manner in this case in circumstances where the case stated does not make findings of fact that the welfare of the child is affected in a manner necessary to satisfy the condition precedent to any s. 47 issue arising. Fundamentally, it is submitted that the case stated does not identify any factual basis upon which the welfare of the child is affected for the purposes of satisfying the conditions precedent to s. 47; nor does it identify an adequate factual basis to allow the Court to consider whether and/or how the answer to the questions of law referred to will affect the welfare of the child. Counsel for the applicant, Mr. Dignam S.C., submits that the argument advanced by the applicant is not a technical one and that the Court is being asked to operate in a vacuum and to make findings of fact sufficient to permit it to engage jurisdiction in relation to the case stated.
15. The applicant also makes a secondary point that even if the Court has jurisdiction to answer the questions, they should be answered in the negative because, as framed, the emphasis of the questions is not on thewelfare of the childbut on therights of the mother. It is argued that in all applications and procedures before the courts in respect of the child welfare issues, the jurisdiction is vested when matters of welfare, or interests, of a child are engaged and require to be clarified; or that steps require to be taken to direct the means by which those interests are furthered. The applicant argues that there is no finding contained in the case stated which places at the heart of the question that it is in the best interests of the welfare of the child that the particular issue be considered. It reiterates that it is a condition precedent to the existence and exercise of the power under s. 47 of the Act of 1991 that the issue under consideration must directly relate to the welfare of the child. Therefore, if the threshold requirement is satisfied, any order thus made must directly relate to the welfare of the child.

16. On parsing the wording of the case stated, the applicant contends that there are very few findings of fact and that in this regard, submits, that the closest the case stated comes to identifying the factual basis upon which the welfare of the child is engaged is finding number (vii):-

“The effect of the basic care of the child being provided by professional services on the emotional and other development of the child has not been ascertained and is very significant having regard to the constitutional rights of the child to an opportunity for full personal development.”
It is submitted that this cannot meet the requirements of s. 52 of the Act of 1961, because at the most basic level it is not a finding of fact at all. The applicant highlights that the court’s finding in this respect “was unascertained” and that, at best, the District Judge had found that the evidence, which he considered, did not establish any facts in relation to the effects on the child’s welfare. It is contended that it is impossible for the Court to assess whether s. 47 permits the making of directions where there are no findings of fact against which the legality of those directions might be assessed. Thus, there is no finding that the welfare of the child would, on the evidence in the proceedings, be adversely or positively affected by carrying out the assessment contemplated in question 1, or by a refusal or deferral of the making of a care order to allow this to be carried out.
17. Counsel accepts, nevertheless, that the jurisdiction of the courts under s. 47 is a very broad one. Thus, inEastern Health Board v. McDonnell[1999] 1 IR 174, McCracken J. observed at p. 184:-

“Quite apart from the general provision, s. 47 of the Act gives an extremely wide jurisdiction to the District Court. Unlike s. 24, this is not limited to cases where there are proceedings before the court, but rather to situations where the child is already in the care of a health board. This jurisdiction may be exercised by the court on its own motion or on the application of any person, which of course would include the notice parties in this case. A somewhat farcical situation therefore, could arise if I declare that the respondent had no power to impose these directions, in that the notice parties could apply tomorrow under s. 47 to the respondent to make exactly the same directions. It is not credible that the respondent should not be entitled to impose directions when making the care order, but would be entitled to do so on a new application the next day.
In my view s. 47 is an all embracing and wide ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court. It should be noted that it is contained in part of the Act dealing with ‘Children in the Care of Health Boards’, and is not qualified in any way. I think the only reasonable interpretation of s. 47 is that it is intended to give the overall control of children in care to the District Court. This is not to say that the District Court should interfere in all day to day decisions made by a health board, but rather that whenever any matters of concern are brought to the attention of the District Court, which could reasonably be considered to adversely affect the welfare of the child, and only in such circumstances, should the District Court interfere. Having read the decision of the respondent in both the cases before me, I am quite satisfied that he had ample grounds upon which to intervene or impose conditions on the making of the care order, although that is not strictly the question before me.”

18. The wide nature of the powers enjoyed by the District Court under s. 47 was reiterated by McGuinness J. in the Supreme Court inWestern Health Board v. K.M. [2002] 2 IR 493 at pp. 510 to 511:-
“I would therefore accept the submission of the respondent that the construction of the Act of 1991, 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.”

19. Significant reliance is also placed by the applicant on the decision of Hogan J. in J.G. v. Judge Staunton[2014] 1 I.R. 390, where, in the context of a judicial review application, he observed that the s. 47 order must relate directly to the welfare of the child. It is to be noted, however, that the issue in that case was whether obligations could be placed onother partiesin the context of an application to the District Court for a supervision order under s. 19 of the Act of 1991. Hogan J. held that neither s. 19 nor s. 47 of the Act of 1991 empowered the District Court to impose personal obligations on third parties, such as directing that parents attend parental assessments or psychotherapy.
20. It is argued that the questions posed in the case stated, and in the orders contemplated, fail to have regard to thewelfare of this child as being paramount. Reference is also made to Article 42A of the Constitution and s. 24 of the Act of 1991 which place at their heart, the welfare of the child as being the paramount consideration. This is not to suggest that the mother’s interests are not a relevant factor for the Court to assess. The rights of the parents are specifically acknowledged in Article 42A of the Constitution and in s. 24 of the Act of 1991, but these provisions make it clear the rights and interests of the parent and child must be treated in a particular way, with the child’s welfare being paramount, as a matter of law.
The respondent’s case
21. The respondent submits that there is a fundamental presumption which arises under the provisions of Articles 42 and 42A of the Constitution, that it is in the best interests of the child to be raised by his or her parents and that it is only in exceptional circumstances that the child should be removed from the family and placed in the care of someone other than his or her parents.

22. InK.A. v. HSE[2012] 1 I.R. 794, O’Malley J. observed that in considering the interpretation of s. 3 of the Guardianship of Infants Act 1964, having regard to the provisions of Article 42 of the Constitution, the Act must be construed as involving a constitutional presumption that the welfare of the child is to be found within the family unless the court is satisfied on the evidence that there are compelling reasons why this cannot be achieved, or unless the court is otherwise satisfied that the evidence established an exceptional case as envisaged by Article 42.5. Reliance in this regard is placed on the decisions ofIn re J.H. (an infant)[1985] I.R. 375, N. v. Health Service Executive[2006] 4 IR 374 and on the decision of Baker J. inS. McG. & J.C. v. Child and Family Agency[2015] IEHC 733, that because of the constitutional position of the mother, the welfare of the child must always be considered as intrinsically bound up with the relationship of that child to his or her mother. A court when considering questions of the best interests or welfare of the child, must also take into consideration the nexus of the relationship between mother and child, or, where relevant, the nexus created by the relevant family unit as understood in the Constitution.

23. Mr. Durcan S.C., on behalf of the respondent, argues that the coming into effect of Article 42A has not in any way displaced the presumption, rather, it has strengthened and enhanced the right of the child to the society of both of its parents. The presumption of the best interests of the child lies in the child’s enjoying such society, something which has been made clear by Humphreys J. inP.H. v. Child and Family Agency[2016] IEHC 106.

24. It is also contended that even in exceptional cases where the court might intervene, when there is a failure of parental duty, the intervention by the State must be proportionate and be by proportionate means. As Costello J. stated inHeaney v. Ireland[1994] 3 I.R. 593 at p. 607 “the test of proportionality … contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society”.

25. A child has a constitutional right to be reared by his or her parents and the parents have a constitutional right to so rear their child. It is thus submitted that orders granted pursuant to the Act of 1991 must be such as to interfere with those rights as little as possible. Such interference must only be where it is required to protect the best interests of the child. On the application of those principles, it follows that in determining an application pursuant to the provisions of the Act of 1991, the Court must investigate and explore whether there are options available which protect the interests of the child but at the same time allow the child to remain in the care of the parent. A clear example of such an approach is where the provision of additional supports may allow a parent to look after the child in a more satisfactory way than had previously been the case, thereby striking the correct balance. The doctrine of proportionality requires that a court can only make an order removing a child from the care of a parent if it is satisfied that there are no viable alternatives to the making of such an order. Any such order should be for the shortest period necessary to protect the child. This principle has particular force where the only or main difficulty in regard to the history of parenting arises by reason of an intellectual disability.

26. Counsel submits that the Court should not be overly critical or overanalyse the wording of the case stated, and that it is perfectly clear why the District Judge is looking for guidance; and also why he should be looking for it. The District Judge is seeking assistance in relation to the extent of his powers, rather than seeking a direction from the Court as to what he should do – the question is directed at whether the District Judge isenabled,rather thanobliged,to take a particular course of action.

27. To this end, it is urged that this Court does have jurisdiction to answer the questions raised from both a technical perspective (pursuant to s. 52 of the Act of 1961 -i.e. in terms of the findings made and outlined in the case stated) and substantively (in the light of the provisions of the Act of 1991).

28. Mr. Durcan S.C. also submits that the findings of the District Judge are more than adequate to justify the questions posed. He relies on the decision inDPP (Travers) v. Brennanin this regard. The District Judge does not have to engage in a general fact finding exercise – he merely has to fact find relevant to the point of law at issue. The case stated in this case makes findings of fact and these facts are relevant to the questions to be answered. Therefore decisions in cases such asO’Shea v. West Wood Club Limited[2015] IEHC 24 andO’Neill v. Butler[1979] I.L.R.M. 243, may be distinguished on this basis.

29. While the childcare law framework in the United Kingdom, particularly that of England and Wales, is not on all fours with that which applies in this jurisdiction, nevertheless, the respondent maintains that certain legal authorities from that jurisdiction are of assistance. InMcG. v. Neath Port Talbot County Borough Council[2010] EWCA Civ 821, a mother of three children who had a learning disability argued that prior to the making of care orders freeing the children for adoption orders, she should have been the subject of a special assessment in light of her learning disability. The absence of any such assessment precluded the making of a decision that there was no real prospect that she could adequately care for the children. The Court of Appeal held that the orders sought by the local authority were a drastic step such as should be undertaken only when all avenues toward rehabilitation had reasonably been explored. The requirement of an expert appraisal as to whether, with appropriate help, the mother’s parenting could be raised to an adequate level within a timeframe apt to the needs of the girls, was one of the grounds on which the Court of Appeal allowed the mother’s appeal.

30. Further, inA Local Authority v. G[2017] EWSFC B94, His Honour Judge Dancey observed at paras. 29 to 30 that the local authority must demonstrate that “nothing else will do” before the court makes as draconian an order as placement for adoption. This authority is also cited in support of the proposition that where a parent has a learning disability, the court must make sure that the parent has not been disadvantaged simply because of such disability. The essential question is whether the parenting that can be offered is good enough if support is provided. Parents with learning disabilities should not be measured against parents without such disabilities and the court should be alive to the risk of direct and indirect discrimination. The court opined that courts should not focus so narrowly on the child’s welfare that the needs of the parent, arising from their disability and impacting on their parenting capacity, are ignored.

31. Counsel argues that not alone is the District Judge empowered to ensure that the court’s actions are proportionate, but by virtue of the provisions of Article 42A, the court must be satisfied that the actions are appropriate.

32. Further he relies on the decisions of the European Court of Human Rights which emphasise, in the context of childcare proceedings, the importance of family life and the involvement of parents in the decision making process as a whole. This is so having regard to the requirements of Article 8, in conjunction with Article 6 and 13 of the Convention. Reliance is placed onSaviny v. Ukraine(2010) 51 EHRR 33 as authority for the proposition that the European Court of Human Rights takes the view that it is inappropriate and inconsistent with the protection of Article 8 rights that the child should be removed from his or her parents, if the parental deficit can be addressed by less radical means than by the separation of the family, such as targeted financial assistance and social counselling.

33. Mr. Durcan S.C. reiterates that the court has wide powers under s. 47 of the Act of 1991 and relies on the decision of Baker J. inV.Q. v. Judge Horgan[2016] IEHC 631. This was an application for certiorari by way of judicial review to quash an order of the District Judge where she had declined to grant an order that the Child and Family Agency fund private orthodontic treatment in respect of a foster child of the applicant. Holding that the District Court had jurisdiction to make an order pursuant to s. 47 that the Child and Family Agency fund dental treatment for a child in care, Baker J. stated at para. 29:-

“Section 47 is ‘couched in the widest possible terms’, and a restrictive interpretation of the extent of that power is not justified in the scheme of the legislation. As Finnegan J. pointed out (in Western Health Board v. K.M. [2001] 1 IR 729), there is no qualification on the statutory power, and the section empowers the District Court to make directions and to do whatever it deems appropriate to achieve the policy of the Act as a whole.”
At para. 42, Baker J. noted that the court’s jurisdiction under s. 47:-
“…is vested in matters of welfare, not such that only matters which adversely affect welfare come to be considered, but where the welfare or interest of a child are engaged and require to be clarified, or steps taken to direct the means by which these are to be furthered.”
34. Emphasis is also placed on decisions such asHealth Service Executive v. O.A.[2013] 3 I.R. 287, where O’Malley J. accepted that in proceedings under the Act of 1991, the judge’s function is different than in most other forms of litigation. He or she must adopt a more inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations.
35. The respondent argues that the contemplated directions pursuant to s. 47 fall comfortably within the powers of the court pursuant to that section as interpreted in relevant case law. They do no more than discharge the obligations of the court to identify what course of action is in the best interests of the child and to direct that that course of action be implemented. A court hearing an application under the Act of 1991 not only has the power, but is obliged, to consider whether a less radical intervention than the removal of a child from the care of his or her parent can provide an adequate degree of protection for the child. The respondent reiterates that the mother who suffers from an intellectual disability should not be discriminated against by reason of such disability, nor should her child be discriminated against as a result of her mother’s disability. Therefore, the examination, identification, and implementation of measures which will support the mother’s ability to parent are necessary to ensure that she does not suffer from such discrimination.

36. Regarding the contents of the case stated, the respondent places reliance ondictainO’Shea v. West Wood Club Limited.Having considered the authorities and concluding that the question of law must be one rising from the facts as found, nevertheless, O’Malley J. commented at para. 42, that“[t]his is not to say that the High Court is not obliged to assist the District Court in so far as it can, having regard to the contents of the case stated”. I have also been referred to dicta of Charleton J. inDirector of Public Prosecutions v. Buckley[2007] 3 IR 745. There, he considered that if he answered the question posed by the District Court without reference to the facts set out in the case stated, he might be in danger of misleading that court as to the appropriate law. Charleton J. in turn referred to thedictaof Finlay C.J. in the Supreme Court inDublin Corporation v. Ashley[1986] I.R. 781, where he stated:-

“The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and the relationship which exists between the two courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court judge.”
Noting this passage from the judgment of Finlay C.J., Charleton J. concluded at p. 749:-
“It follows that for the purpose of assisting the District Court, this court must look at the whole of the case stated and give advice on the basis of what Laffoy J. in The National Authority for Safety and Health v. O’K Tools [1997] 1 I.R. 534 at p. 541 called:- ‘the issue on which the District Court judge requires guidance’. Therefore, a question may be reformulated and an answer given in the light of the whole of the case stated provided this does not exceed the facts as found for this purpose by the District Judge.”
Decision
37. In truth, there is little difference between the parties as to the legal principles applicable regarding the jurisdictional or substantive issues which I must address. In essence the applicant maintains that the requisite minimal findings of fact are not stated in, or evident from, the case stated and that this Court should not imply or supplant its own view of whether what is proposed by the District Judge is in fact in the best interests ofthis child, where that has not been expressly found or stated as a finding of fact by him. On a more substantive basis, it submits that the manner in which the question is formulated does not place at its heart the best interests of the welfare of this child. The respondent, on the other hand, submits that this Court should not adopt an overly critical approach to the reading of the case stated and that I must have regard to and be aware of the constitutional and statutory presumptions which apply when approaching and interpreting the case stated.

38. It is true that a striking feature regarding the jurisdiction being exercised by the District Judge in the proceedings giving rise to the case stated is the presumptions which apply – being the presumption that the child’s welfare is best provided for by being parented by a biological parent, and the corresponding interests of the parent. The case stated arises in the context of the exercise of particular statutory powers which the District Court enjoys pursuant to the provisions of the Act of 1991. The central emphasis of the power exercised by the court under this Act and amending legislation is that it be exercised in the best interests and welfare of the child.

39. On my reading of the case stated I am not satisfied that it could be reasonably concluded that the District Judge expressly found, or stated, that it was in the best interests of this child (either in her own right or in the context of a balancing exercise between the rights of all concerned and affording paramountcy to the child’s interests and welfare) that the question requires to be answered. On my reading of the case stated, I conclude that the District Judge does not expressly refer to his having considered or found as a fact that the proposed course of action, being the ascertainment of the cost of carrying out an appropriate assessment, is in the best interests of this child, A.B.

40. I agree with the applicant that the case stated as so framed largely places the focus, in express terms, on the child’s mother, rather than the child. In fact, the best interests of this child are not referred to in the case stated, save in the context of the generally stated presumption. I refer in this regard to para. 1(i) of the case stated. Reference should also be made to para. 1(vii) and to the District Judge’s statement that certain matters have not been ascertained. It seems to me, therefore, that a question which I must address is whether it is reasonable for me to construe, conclude or imply that, read as a whole and against the backdrop of the applicable presumptions concerning the rights of the child and her mother, at the heart of the case stated is a necessary, but unexpressed, conclusion by the judge that the questions required to be answered are in the best interests of this child, either in her own right or as part of an exercise in balancing the rights of all concerned.

41. The requirements as to the necessary contents of a case stated have been outlined on many occasions – seeDPP (Travers) v. Brennan, per Lynch J. referred to at para. 11 above and inMitchelstown Co-Operative Society Limited v. Commissioner for Valuation[1989] I.R. 210. In the latter case, Blayney J. quoted Murphy L.J. in the Northern Ireland Court of Appeal inEmerson v. Hearty & Morgan[1946] N.I. 35 as follows:-

“The Case should set out clearly the Judge’s findings of fact, and should also set out any inferences or conclusions of fact which he drew from those findings. The task of finding the facts and of drawing the proper inferences and conclusions of fact from the facts so found is the task of the Judge. It does not fall within the province of this Court. Accordingly, it is not legitimate by setting out the evidence in the Case Stated and omitting any findings of fact to attempt to pass the task of finding the facts on to the Court of Appeal.”
42. Nevertheless, it seems clear that the above must be viewed in the light ofdictaof Finlay C.J. and Charleton J. referred to at para. 36 above, and that the Court should adopt a broad, helpful and purposive approach to the interpretation of the question being asked. But that does not mean that the fact-finding role of the District Judge is any the less crucial. Charleton J. made this clear in the passage quoted above where he stated in the ultimate sentence – “provided this does not exceed the facts as found for this purpose by the District Judge”.
43. In an exchange with the Court, Mr. Dignam S.C. accepted that it could not be disputed that if the court believed that it was in the best interests of the child to obtain a report, that the District Judge would not be precluded from obtaining such a report, noting the express statutory provision contained in s. 27. Nevertheless, he submitted that despite the fact that Article 42A expressly provides that the interests of the child are served by being with the parents, it is still necessary for there to be a finding of fact in order for this Court to answer the question in a consultative case stated. It is submitted that it is not sufficient for the District Judge simply to employ a constitutional presumption to justify the obtaining of a report – otherwise it might be deemed to so apply in every case. Rather, there must be some basis for believing that a report is necessary or would be beneficial to the functioning of the court or to the parties in the case before it.

44. Regrettably, and not without some hesitation or reluctance, I have come to the conclusion that it is impermissible for me to conclude that the presumptions to which I have referred, should in some shape or fashion, be construed as findings of fact in this case. Although the respondent has quite correctly pointed out that the role and the rights of the mother are matters which must be taken into account, it seems to me that in order to engage the jurisdiction under s. 18, consideration must be given to the rights of the child, which have paramountcy, in the determination of any such issue and in the context of the question as stated.

45. To imply from the constitutional and statutory presumptions that there has necessarily been a finding of fact, albeit unexpressed, on a particular issue regarding the best interests of this child, would appear to me to go a step further than is permitted by the jurisdictional limitations placed on this Court by the provisions of s. 52 of the Act of 1961, as interpreted in both this court and the Supreme Court.

46. Regrettably, I must conclude that in the absence of a finding or findings of fact that it is in the best interests of this child, on the evidence considered, that the questions arise and should be answered, I am unable to answer the questions raised by the learned District Judge.