Health Service Executive -v- EF & anor (Supervision Order)

• Court: District Court (Ireland)
• Judge: Toale J.
• Judgment Date: 28 September 2010
• Neutral Citation: [2010] IEDC 4
• Case Outcome: Approved
• Date: 28 September 2010

[2010] IEDC 4

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

EF & ML

RESPONDENT

CHILD CARE ACT 1991— SECTION 47

IN THE MATTER OF CHILD 1

28 September 2010

1. In this cas e, an Interim Care Order under sect ion 17 of the Child Care Ac t 1991 (the Ac t) expires to day. There w as no application

before the Court by the HSE for any order under the Act. The HSE is represented in Court, and also present and represented are the

guardian ad litem (GAL) for the subject child, and the respondent mother. The GAL has orally made an applicat ion under section 47 of

the Ac t for t he Court t o direct t he HSE to issue a n application for Supervision Order under sec tion 19 of t he Act , and the GAL’s

application is supported by t he respondent mother. For the purposes of this c ase, I accept that the c hild is at present in t he care o f

the HSE and that the GAL and respondent mother are entitled t o make the application.

2. It is submitted by t he HSE that t he Court does not have power under section 47 of t he Ac t or ot herwise to direct that the HSE

make an application f or a Supervision Order. It is submitted t hat pursuant t o sec tion 19(1) of the Act , the Court may make a

Supervision Order only on the applicat ion of the HSE (save in the c ircumstances se t out in sect ion 18(5) and (6), which do not arise

in this case). It is submitted that the making of such an applicat ion is a matter to be decided by the HSE pursuant to its general

duties under the Ac t and its particular duties under sec tion 16.

3. It is submitted by t he GAL and respondent mother that t he Court has power t o make the direction sought pursuant t o section 47 of

the Ac t. It is submitted that the Court, in exercising its supervisory c apacity (as desc ribed in EHB v McDonnell [1999] 1 IR 174), may

make any direct ion on any question aff ect ing the welfare of a child in the c are of t he HSE, and that this includes the power to direct

the HSE to make an application for a S upervision Order. It is submitted that there is no restriction on the power of the Court to make

directions under sect ion 47, and that the Court ought to make the direct ion sought in pursuance of t he interests and welfare of t he

child per sect ion 24. It is submitted that it would be proper for this Court t o make such an order, in order to vindicate the

constit utional rights of the s ubject c hild. Counsel referred to the c ases of Eastern Health Board v McDonnell and Western Health

Board v KM [2002] 2 IR 493 and submitted that the judgments in those c ases supported t he submission that this Court has t he power

to make the requested direct ion.

4. I acc ept that, as set out in WHB v KM, the const ruction of t he Act should be approached in a purposive manner and should be

construed as widely and liberally as fa irly can be done. However, as pointed out by McGuinness J in her judgment at page 511:

“this does not of c ourse imply that sect ion 47 can be looked at apart from its co ntext of the general framework of

the Ac t, or t hat t he widely drawn terms of the s ect ion means that the District Court is simply at large in orders it

may make pursuant to t his sect ion.”

5. The jurisdiction of t he District Court is limited and local. The jurisdict ion of the District Court under the Ac t is set out in sec tion 28,

which stat es that the District Court “shall have jurisdiction to hea r and determine proceedings ... ”. There is no provision for the Court

to issue proce edings. Direct ing any party t o issue proceedings is in my view the same as issuing such proc eedings, and such direction

is beyond the jurisdiction of t his Court.

6. Sect ion 19 of the Act deals with supervision orders. Sect ion 19 (1) provides that “where, on the applicat ion of a health board .. .”.

That sect ion does not make provision for applicat ion for a Supervision Order to be made by anyone other t han the HSE. Sec tion 18(5)

and (6) provide that t he Court may make a Supervision Order in the circumstanc es set out in those subsect ions but does not

authorise the making of a Supervision Order in any other c ircumstances. None of those c ircumstances arise in this c ase, as the HSE

has not moved an application for a care order. Sec tion 17 makes no provision for the making of a Supervision Order under that sec tion

in any circumstances. I note t hat sec tion 17(2) provides that an application f or an extension of an Interim Care Order may be made

by any of t he parties thereto. I note that sect ion 18(2) provides that t he Court may, of its ow n motion or on the application of any

person, extend the ope ration of a Care Order in the c ircumstances set out therein. There are no suc h provisions in the Act in relation

to applicat ion for a Supervision Order being made by any party ot her than the HSE, or for the Court of its own motion to make or

extend a supervision order. Given that the legislation is quite spec ific (a nd different) in respect of t he powers given to parties to

apply and to t he Court to act on its own motion under sect ions 17, 18, and 19, I do not believe that s ect ion 47 can be used t o

attribute t o the Court or other parties t he power to make application spec ifically reserved to t he HSE, in particular a Supervision

Order (or to direct t hat suc h an order be applied for), however desirable it might that s uch application be made.

7. If I were to grant the a pplication, then t his Court would be act ing either as a review tribunal in respect of t he dec ision of the HSE

not to make an applicat ion to the Court, or as an appeal t ribunal in respect of the decision of t he HSE not t o make an application to

the Court. I do not believe that this Court has jurisdiction t o do either.

8. I, therefore, refuse the applicat ion.