Health Service Executive (plaintiff) v K (D) represented by his Solicitor and Best Friend (A Minor)

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 18 July 2007
• Neutral Citation: [2007] IEHC 488
• Court: High Court
• Date: 18 July 2007

[2007] IEHC 488

THE HIGH COURT

RECORD NO. 1974 P/2006

Health Service Executive (HSE) v K (D)(A Minor) & Ors

IN THE MATTER OF D.K., A CHILD

AND IN THE MATTER OF ARTICLE 40.3 AND ARTICLE 41 AND ARTICLE 42 OF THE CONSTITUTION

AND IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT, 1964 AS AMENDED

AND IN THE MATTER OF THE CHILD CARE ACT, 1991

BETWEEN/

THE HEALTH SERVICE EXECUTIVE

PLAINTIFF

AND

D.K., A MINOR REPRESENTED BY HIS SOLICITOR AND NEXT FRIEND ROSEMARY GANTLY AND O.K.-D.

RESPONDENT

CONSTITUTION ART 40.3

CONSTITUTION ART 41

CONSTITUTION ART 42

GUARDIANSHIP OF INFANTS ACT 1964

CHILD CARE ACT 1991

HEALTH SERVICE EXECUTIVE (SOUTH EASTERN AREA) v R (W) UNREP MACMENAMIN 18.7.2007 2007/28/5842 2007 IEHC 459

DPP (MURPHY) v T (P) 1999 3 IR 254 1998/16/6157

FAMILY LAW

Children

Health board - Detention order - Child at large - High Court inquiry into death of child while at large following making of detention order - Procedure for implementation of court orders - Nature and amount of information appropriate to be given to court on application for order - Format and content of order - Persons on notice - Procedure to be followed where child failed to abide by residence requirement - Contents of affidavit - Role and duty of guardian ad litem - Whether detention order should be made if alternatives available - Health Service Executive (South Eastern Area) v WR [2007] IEHC 459 [2008] 1 IR 784 applied; DPP v PT [1999] 3 IR 254 considered - Inquiry conducted (2006/1974P - MacMenamin J - 18/7/2007) [2007] IEHC 488

HSE v K (D)

Facts the High Court was requested to carry out an inquiry into the circumstances surrounding the death of a psychologically troubled fourteen year old boy by his family and who had been, from time to time, in the care of the plaintiff on foot of detention orders. It was agreed that the High Court should review the procedures applicable in regard to the grant of detention orders in the light of what occurred, the purpose of such a review being to ascertain what steps, if any, could be taken in the procedure and implementation of court orders which would reduce the risk to children arising from the grant of such an order. The issues to be addressed in the review were, inter alia,:-

the nature and amount of information which should be given to a court at the time of the making of a detention order, in particular in regard to risk factors;

the format and content of an order for detention granted by the High Court and the adequacy or otherwise of such contents and format;

the implementation of such orders and whether any specific directions should be given in regard to such implementation;

the persons who should be on notice of an application for the grant of a detention order, and;

the procedures which should apply where a child whose case was listed in the Minor's List fails to reside or continue to reside at the location where the court was told that he would be staying, in particular what steps should be taken if such a child leaves a care facility and refuses to reside there.

Held by Mr. Justice MacMenamin in making the following observations:-

That one had to be slow to ascribe fault in difficult area where decisions made in good faith could have long term consequences which may not have been foreseen.

That, in general, proceedings commenced where the applicant is a statutory body, such as the Health Service Executive, should be by way of plenary summons.

Save in cases of exceptional urgency, a comprehensive grounding affidavit should be filed in the Central Office at the time of the issuing of the plenary summons setting out the following:-

Disclosure of the circumstances giving rise to the application being made;

Disclosure of all court proceedings, whether civil or criminal, past or pending, concerning the minor;

Disclosure of the care, protection and welfare history of the minor including its family structure, significant relationships and significant circumstances or events concerning the minor and his family;

As exhibits:-

A long form birth certificate;

An up to date medical report on the general standard of health of the minor;

Relevant education, health, probation, welfare or assessment reports.

The affidavit should also contain:-

A list of all the files and other sources of information consulted prior to the drafting of the affidavit;

Full disclosure of all previous interventions concerning the minor, including the date of the intervention, the duration of the intervention and their success or otherwise;

A comprehensive social work report;

A comprehensive care plan in respect of the minor, including full and precise particulars of all step-down placements applicable to the welfare of the minor;

The views of the minor, their family and all other significant individuals, clinicians, gardai, teachers, health or other care staff on the proposed placement;

Details of the placement proposal in respect of which the application is being made, including the date of the availability of that placement, its anticipated duration, the initial period of detention sought and the written consent of the admissions authority or other person authorised to consent to the proposed placement and the nature and timescale of any proposed therapeutic intervention;

The steps necessary and all assistance required to execute the court order for detention if made by the court;

A risk assessment;

An outline of what steps, if any, could be taken to reduce such risks; and

An identification of the particular risk foreseen in regard to the execution of the detention order and if so, why and what steps could ameliorate or reduce such risks and any particular or special directions sought in regard to the execution of the order.

The full facts supporting any claim of risk to the life of the minor should be set out with particularity in the grounding affidavit, together with all clinical or expert reports supporting the claim.

The minor should not be named personally as either a plaintiff or defendant in the proceedings.

A notice of motion should be issued at the time of the filing of the plenary summons which should set out with particularity the specific order sought by way of interlocutory relief.

If it is intended to seek an order for the detention of a minor by way of plenary summons, the relief sought should specify the place of detention, the period of that initial detention and the identity of the person in whose custody the minor is to be detained.

Any application regarding a minor facing criminal charges before another court may be brought only on notice to the Health Service Executive and the prosecuting authorities in such criminal proceedings.

Reporter: P.C.

1 This inquiry was carried out on the application of the family of D.K., a fourteen year old boy who died tragically on the night of the 4 ^th/5 ^th of December, 2006. The court was asked to inquire into events which occurred after an order was made on 1 ^st December, 2006 that D.K. be immediately taken into care. The account which follows is based on affidavit evidence and reports. It does not purport to ascribe fault, if any, for what occurred. This Court has no such jurisdiction. That statutory duty lies elsewhere. The inquiry was carried out with the prior consent and total co-operation of the parties so as to ensure that the procedure for implementation of detention orders of young persons at risk works in the most effective way for the protection of these young persons. It is a fundamental tenet of the rule of law and the administration of justice that courts, established under the Constitution, should supervise their own procedure and the manner in which orders, once made, are implemented. This is exemplified on the facts of this case. But this inquiry proceeded within very limited parameters and having regard to the roles of the judiciary and Executive outlined in the case of H.S.E. v. W.R. delivered on the same day as this judgment. It is important to record that the evidence was adduced only in affidavit form. Not all the parties involved in the events described testified or were represented. Accordingly, the narrative of events should not be interpreted as findings of fact.

2 It is the hope of D.K.'s parents that the results of this inquiry will reduce the risk that the tragic events described will occur in the future.

3 On 1 ^st December, 2006 counsel on behalf of the plaintiff in the above entitled proceedings made application to this Court for the detention and care of D.K., a minor born on 26 ^th March, 1992. D.K. lived in an area close to a large city. He had a troubled family background. His father and mother were separated. His mother commenced living with another man, M.D., with whom she enjoys a stable relationship. L.D., D.K.'s half brother, was born on 15 ^th September, 2005.

4 In the two years prior to December, 2006 D.K. engaged in extremely challenging behaviour. His mother and stepfather were unable to manage him. He frequently left home without permission, did not return, slept rough, drank alcohol, smoked hashish. He stole his stepfather's car and crashed it. D.K. frequently put his own life at risk. He was effectively homeless for a period of months, during which time he slept rough or in friend' homes.

5 From time to time D, would return to his family home. But as a vulnerable 14 year old D. was in a position where he was essentially free to do whatever he wished. He was unmanageable. He had little capacity to make choices in his own life which would be to his long-term benefit.

6 D.K. had been first placed in Ballydowd on 10 ^th May, 2006. He remained there for a period of three months approximately, until 23 ^rd August of that year. During this period he absconded for a period of five days.

7 D. again absconded on 23 ^rd August,...