O'H v The Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Henry Abbott
• Judgment Date: 19 February 2007
• Neutral Citation: [2007] IEHC 175
• Docket Number: [2007 No. 113 SS]
• Court: High Court
• Date: 19 February 2007

[2007] IEHC 175

THE HIGH COURT

[No. 113 SS/2007]

O'H (D) v HEALTH SERVICE EXECUTIVE (HSE)

IN THE MATTER OF ARTICLE 40.4 OF BUNREACHT NA hÉIREANN

AND IN THE MATTER OF AN APPLICATION FOR HABEAS CORPUS

BY D O'H AND IN THE MATTER OF S H (AN INFANT), D [ALSO

KNOWN AS "DJ"] H (AN INFANT) AND M A H (AN INFANT)

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT

1964 AND IN THE MATTER OF THE CHILD CARE ACT 1991 AND IN

THE MATTER OF THE EUROPEAN CONVENTION OF HUMAN

RIGHTS ACT 2003

BETWEEN

D O'H

APPLICANT

AND

HSE

RESPONDENT

AND

T H

NOTICE PARTY

CONSTITUTION ART 40.4

GUARDIANSHIP OF INFANTS ACT 1964

CHILD CARE ACT 1991

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

CHILD CARE ACT 1991 S4

CHILD CARE ACT 1991 S4(2)

CHILD CARE ACT 1991 S13(7)

CHILD CARE ACT 1991 S14

CHILD CARE ACT 1991 S18(6)

CHILD CARE ACT 1991 S37(1)

SHANNON CHILDREN & THE LAW 1ED 2001

C (R) v S (I) 2003 4 IR 431 2004 2 ILRM 285 2004 6 1171

HAGUE CONVENTION ON CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

N v HEALTH SERVICE EXECUTIVE (HSE) & ORS UNREP SUPREME 13.11.2006 2006 IESC 60

ADOPTION ACT 1988

1 JUDGMENT of Mr. Justice Henry Abbott delivered on the 19th day of February, 2007 .

2 This is an application by the father of three children who have been taken into care by the officials of the Health Service Executive, who is the respondent in the case. As regards the present whereabouts of these children, they are in foster and the applicant makes this application on their behalf under Article 40.4 of the Constitution in relation to having an enquiry conducted in relation to the lawfulness of the alleged detention by the Health Service Executive through the agency of the foster carers, of the three children concerned.

3 The three children are named in the proceedings and were born of a non-marital relationship between the applicant and the second-named respondent. The applicant and the notice party lived together for a number of years, while the children were being born. The children were brought up by them until unhappy differences arose between them, and the couple separated. In those circumstances the applicant, the father, although in biological terms the natural parent of the child had little or no legal standing, except that under recent legislation he had a right apply to the court to be appointed guardian of the three children. And that he did. As a result of that application he was appointed guardian. Terms of custody and access in general terms were worked out by agreement for presentation to the District Court making the guardianship order, whereby in colloquial terms the mother, the notice party, had custody of the children and access was afforded to the applicant on Monday, Wednesday and Friday, and various other times. Christmas access was to be arranged between the parties and while the children were on school holidays the access would be extended from 12 noon to 6 pm on Monday, Wednesday and Friday.

4 It appears that the pattern of access and custody (in colloquial terms) developed over time after the order of the District Court granting guardianship status on the applicant. As time went on, difficulties arose between the couple insofar as the applicant continued to be unsatisfied with the manner of the care of the children by their mother. He had become more and more involved in the childrens day-to-day care as the custody access arrangements development, and he invited through a number of letters, one written by his solicitor, the officials, or the social workers representing the respondent Health Executive, requesting that the health authority would give the issue of care of the children some attention. As a result, the health authority seemed to have engaged with the mother of the children and, as far as the applicant is concerned in his account of matters in his affidavits to the court, the Health Executive did not in a sufficient way consult him in relation to how arrangements were to be made to improve the care of the children. It appears that a first period of a type of foster care, with suitable access for both natural parents, was arranged with the consent of both parents, but when this arrangement ceased there arose a second period of care, purportedly on consent of the parties, in which the children were sent into foster care for a period of twelve months.

5 The court directed an enquiry, under Article 40.4 and while not directing that the children the subject matter of the enquiry would be produced in court, was aware that the Health Executive would await the determination of the court in relation to their ultimate destination, and I am satisfied that was an appropriate way for both court and parties to deal with the matter. The manner in which the respondent Health Service Executive responded to the matter rested on two grounds, firstly, that the natural parents both consented to the consignment, or the sending of the children into foster care. The Health Service Executive contended that this was a situation dealt with under Section 4 of the 1991 Act, and that being so, that the children were in the lawful care and detention by the Health Service Executive, and that the applicant by withdrawing his consent to that arrangement having been given it, in the first instance, could not thereby make the detention unlawful.

6 I am inclined to agree with that submission insofar as if the consent were made in the first instance, then a party to that consent would have to go back to the District Court in relation to a guardianship of infants matter, following the earlier order of the District Court to have the matter sorted out in relation to whether the consent given jointly by the parents to the fostering arrangement could be unilaterally revoked. That would be a matter of private law between the parents and would not be a matter giving rise to a situation where a court, on an enquiry under Article 40 could hold that consent, which was a joint matter which emerged from a unit of two natural parents, had been revoked.

7 So it is important for me to decide whether, on the facts, the applicant did or did not give his consent to the Health Service Executive social workers and other officials in relation to this second period of 12-months foster care. I am inclined to decide that in fact the applicant did not so give his consent; firstly, because he says so in his affidavits; secondly, because the care programme meticulously filled out by the social workers, or worker for the first-named respondent was not actually signed by the applicant and, thirdly, because the replying affidavits on behalf of the first-named respondent did not positively assert in clear terms that the applicant had consented; and fourthly, and (this possibly begs a question which I have to answer later on in this judgment), the Health Executive officials, all of them (and, I might add all appearing to me to have acted absolutely in good faith and in a manner which would represent the best standard of care and attention which officials in this position have to give to cases of care under the child legislation, notwithstanding the high level of professionalism and care apparent in the activities of the Health Service Executive), it seems to me, could not be expected easily to consider that the consent of the applicant in this case was very material - in view of literal interpretation of the legislation.

8 I concede that the documentation produced by the Health Service Executive is indicative of the fact that they had the applicant in their sights, so to speak, and were consulting him and aware of his whereabouts, but on a literal reading of the section, requiring that the consent of the person having custody of the child was the relevant consent to be considered, that they, looking at the matter from a literal point of view and a reading of the section, that they could say, "well the mother in this instance has custody and the father, the applicant, is a guardian and the section doesn't seem to cover that". So, that being so, the Health Executive, it seems to me, could be forgiven, and easily forgiven, for not paying much attention to the requirement of the consent of the applicant as a fundamental and necessary condition for proceeding.

9 And that brings me to the substance of the case being put forward by the applicant in terms of the case that once it is established that the consent of the applicant has not been given - one of the facts of the case - the applicant then has submitted that the requirements of Section 4 of the Child Care Act, 1991, subsection 2 have not been met, insofar as he claims that within the meaning of subsection 2 of Section 4 of that Act, that he is a "parent having custody". Section 4 of the Child Care Act relating to the taking of children into care by a Health Service Executive, under the regime of voluntary care provides as follows.

10 2 "(1) Where it appears to a health board that a child requires care or protection that he is unlikely to receive unless he is taken into care, it shall be the duty of the health board to take him into its care under this section."

11 3 (2): "Without prejudice the provisions of Parts III, IV and V, nothing in this section shall authorise the Health Service Executive to take a child into its care against the wishes of a parent having custody of him or of any person acting in loco parentis or to maintain him in its care under this section if that parent or any such person wishes to resume care of him."

12 Ms. Clissman, senior counsel, for the applicant has submitted that the wording of subsection 2 of the 1991 Act should be interpreted not literally in relation to the term "parent having custody", (which in the literal sense would point to the mother), but having regard to the requirement of a schematic interpretation being applied to a...