Health Service Executive -v- DC & anor (Removal from Jurisdiction and Preservation of Culture)

CourtDistrict Court (Ireland)
JudgeHalpin J.
Judgment Date25 September 2008
Neutral Citation[2008] IEDC 2
Case OutcomeApproved
[2008] IEDC 2
25 September 2008
1. This matter c ame on for hearing on Friday 5 September 2008 in the 10:30 List, which is a list usually devoted t o short interlocutory
applications which c an be dealt with quickly. The matte r presented the Court with enormous complexity, the magnitude of which
ought to hav e been signalled to the Court prior to it being expected to deal with it. Fortunately, t he case which wa s at hearing had
conc luded the day prior and this Court was a ble to fac ilitate t he Application.
2. This is an Applicat ion by the HSE pursuant to s ection 47 of the Child Care Act, 1991, seeking to place t he children the subject of
the Interim Care Orders, outside t his jurisdiction. The Applicat ion was cont ested by t he respondent parents. The HSE c alled their
Social Worker as a witness for their application and the respondents cont esting the Applicat ion also gave evidenc e.
3. This matter arises from the absenc es of these c hildren at their place of schooling. On 22 May 2008, the National Educat ional
Welfare Board faxed the Soc ial Work Department advising that Child 2, aged 9 years, had not returned to school since 7 January
2008. This triggered an investigation which resulted in an Applicat ion for an Emergency Care Order on 6 June 2008. The Social
Worker’s report set s out in detail the circ umstanc es surrounding this c ase which I can say is very tragic indeed. T he paternal aunt
(“Aunt”) feat ures from the very outset in this c ase, in fact, t he Educational Welfare Officer faxed t he HSE on 3 June 2008, and
expressed Aunt’s conc erns to t hem. It is not c lear how Aunt bec ame involved in this case prior to t he Emergency Care Order
4. The matter next came before this Court on 13 June 2008. T he Court, having considered the Social Work Court Report dated 12
June 2008, granted an Interim Care Order pursuant to sec tion 17 of the Child Care Act, 1991. One point which should be made is that
on page two of the s aid Report, it stat es that “mother stated t hat she would be ‘clean’ within two we eks and able to parent her
children after that time. It appeared that mother lacked insight into the reality of the t ime it would take to rec over from a serious and
enduring heroin and coc aine addiction.” However, w ithout medical or professional help or intervention both respondents tac kled their
addiction over t he summer months and have not since July taken drugs. The Court ac knowledges this monumental step t aken by the
5. Interim Care Orders have routinely been applied for and granted by t his Court. In Social Work Report dated 5 August 2008, at page
four, it is sta ted that :
“it is considered nec essary for the HSE at this point t o make formal medium – long term plans for Child 1’s and Child
2’s care in order to ensure t he cont inued promotion of their aca demic, soc ial and emotional needs whilst
endeavouring to maintain the children in the safe c are of t heir family.”
6. To dat e, I have not seen, nor has e vidence been given t o this Court in respect of the aca demic needs or requirements of thes e
children. Up to and including this Report, I can understand t he HSE’s approach to this case but the inattentive a nd indifferent
participation of t he respondents up t o the end of August does not sanction the HSE to depart from the norms in dealing with this
matter. Firstly, a plan must be a plan and sec ondly it must spec ifically take into a cco unt the needs and requirements of t he children.
Such a plan has not been devised t o date.
7. In determining this Application, t hat is an Application t o locat e the c hildren in a foreign jurisdiction, the Court has carefully
considered all the evidenc e in this matter but befo re making such an Order the Court must c omply with t he basic minimum criteria laid
down by the Supreme Court in the c ase of Western Health Board v KM [2002] 2 IR 493, namely that the Court should weigh all
relevant fac tors including:
(i) The c onstitutional rights both of the c hild and of his/her parents;
(ii) The parameters of law regarding children in the jurisdiction in which it was proposed the child should live. For
example, did the principle that the welfare of the c hild was paramount apply? Were t he normal principles of the
comity of c ourts ac cepted? Was it likely that the orders of t he Irish court would be recognised and enf orced?
(iii) Was the co untry conc erned a signatory to t he Hague and/or Luxembourg Conventions on Child Abduction?
(iv) Was there a lready in place a syst em of co-ope ration between t he child care aut horities in the proposed
jurisdict ion and the health boards in their role as c hild care authorities in this jurisdiction or could such a system
readily be established?
(v) If the child was placed abroad, would acc ess to t he child by the natural parent or parents be a practic al
possibility in t erms both of distance and of expense?
(vi) Was there a reasonable possibility of using either undertakings or mirror orders to make the position of t he child
and of the relevant health board more secure?
8. The HSE place great store upon t he Soc ial Work Report dated 2 September 2008, grounding this Application. At page two of this
Report, out of t he blue comes the state ment t hat “exploring the options for the children’s care, all were in agreement that Aunt and

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