Health Service Executive -v- M & anor (Children Request Solicitor)

JudgeToale J.
Judgment Date01 November 2010
Neutral Citation[2010] IEDC 4
Case OutcomeApproved
Date01 November 2010
CourtDistrict Court (Ireland)
[2010] IEDC 5
M & T
1 November 2010
1. On 22 February 2010, the applicants a pplied for, and were granted, Emergency Care Orders (sect ion 13 Child Care Act 1991) in
respect of eac h of t he five c hildren. The Emergency Care Orders expired on 1 March 2010.
2. On 1 March 2010, the a pplicants applied for, and were granted, Interim Care Orders (sect ion 17(1) Child Care Ac t 1991) in respect
of eac h of t he four children. On various dates since then, t he Interim Care Orders in respect of eac h of the children have been
extended (sec tion 17(2) Child Care Act 1991), and are now e xtended to 15 November 2010.
3. The applicant s have applied for Care Orders (sec tion 18 Child Care Act 1991) in respect of eac h of the five c hildren, which said
applications have been liste d for hearing for 10 days commencing on 24 January 2011.
4. On 12 March 2010, a Guardian ad litem (“GAL”) was appointed pursuant to s ect ion 26 Child Care Ac t 1991 for eac h of t he four
5. The respondent mother is represented in these proceedings. T he respondent fa ther is not represente d in these proce edings, and
his attendanc e at court has been sporadic.
6. The t wo older children have stat ed that they wish to have a solicitor represent t hem in these proceedings. Child 1 is aged 16 and
Child 2 has recently turned 15.
7. In dealing with applications under Part V of the Child Care Act 1991 (such as t he applications made by t he applicant herein), the
obligation of the Court is t o give c onsideration to the wishes of t he child as set out in section 24 of t he Child Care Act 1991. Section
24 provides as follows:
‘In any proceedings before a c ourt under this Ac t in relation to t he care and protect ion of a c hild, the c ourt, having
regard to the rights and dut ies of parents, whether under the Const itution or otherwise, shall—
(a) regard the welfare of the c hild as the f irst and paramount consideration, and
(b) in so far as is prac ticable, give due consideration, having regard to his age and understanding, to
the wishes of the c hild.’
8. Children are not parties to proc eedings under the Child Care Act 1991 unless joined by the Court. The Court has power to join a
child under section 25 of the Child Care Act 1991. Sect ion 25 of the Child Care Act 1991 provides as follows:
‘(1) If in any proceedings under Part IV or VI the child to whom the proce edings relate is not already a pa rty, the
court may, where it is satisfied having regard to t he age, understanding and wishes of the c hild and the
circumstances of the case that it is nece ssary in the interest s of t he child and in the interest s of justice to do so,
order that t he child be joined as a party to, or s hall have such of t he rights of a party as may be specified by t he
court in, either t he entirety of the proceedings or such issues in the proceedings as the c ourt may direct. T he
making of any suc h order shall not require the intervention of a next friend in respect of the c hild.
(2) Where the c ourt makes an order under subsection (1) or a c hild is a party to the proce edings otherwise than by
reason of suc h an order, the c ourt may, if it t hinks fit, appoint a solicitor t o represent t he child in the procee dings
and give directions as t o the performance of his duties (which may include, if nec essary, directions in relation to the
instruction of c ounsel).
(3) The making of an order under subsection (1) or the f act that a c hild is a party to t he proceedings ot herwise
than by reason of such an order shall not prejudice t he power of t he court under sect ion 30(2) to refuse t o acc ede
to a request of a child made thereunder.
(4) Where a solicitor is appointed under subsec tion (2) , the cos ts and expenses inc urred on behalf of a c hild
exercising any rights of a party in any proceedings under this Ac t shall be paid by t he Health Service Execut ive. The
Executive may apply to t he c ourt to have the amount of any such c osts or expenses measured or taxed.
(5) The c ourt which has made an order under subsection (2) may, on the applicat ion to it of the Health Servic e
Executive, order any ot her party to the proc eedings in question to pay t o the Executive any c osts or expenses
payable by the Executive under subsec tion (4).’
9. The Court has discretion to appoint a guardian ad litem for a c hild in proceedings under Parts IV and V of the Child Care Act 1991.
A guardian ad litem has been appointed f or each of the c hildren herein, including Child 1 and Child 2. The guardian ad litem is
appointed under sect ion 26 of the Child Care Act 1991, which provides as f ollows:
‘(1) If in any proceedings under Part IV or VI the child to whom the proce edings relate is not a party, the court
may, if it is satisfied t hat it is nec essary in the interests of the c hild and in the interests of justice to do s o, appoint

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