Health Service Executive -v- ML (Care Order - No Legal Guardian)

• Judge: Horgan P.
• Judgment Date: 01 October 2013
• Neutral Citation: [2013] IEDC 15
• Case Outcome: Approved
• Date: 01 October 2013
• Court: District Court (Ireland)

[2013] IEDC 15

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANTS

- AND -

ML

RESPONDENT

CHILD CARE ACT, 1991 - SECTION 18

IN THE MATTER OF CHILD 1 AND CHILD 2

1 October 2013

1. This is an applicat ion for a Care Order under S.18 (1) (b) and (c) of the Child Care Act , 1991 (herein after referred to as ‘the 1991

Act ’) in respect of two c hildren, Child 1 born on the 13/12/1996 and Child 2 born on the 23/08/1998.

2. Both children are currently in the c are of t he Health Service Executive (HSE) and are placed in a residential unit. Both children were

admitte d to c are under Sect ion 4(4) (Child 2) and Section 5 (Child 1) of the 1991 Ac t, in the hope of reunification with a parent

outside the jurisdiction. T his has not proved t o be possible despite ef forts by t he HSE through the embassy of t he country of origin of

the c hildren or International Social Services . The c hildren were originally placed in the c are of their putative st ep mother in Ireland by

their father (who remained abroad) and this arrangement c ontinued betwee n 2008 and 2011. The children had intermittent cont act

with their fat her in the period.

3. When the kinship care arrangements with their putat ive step mother broke down, the c hildren were then placed by their father with

two ot her persons, the se cond of whom was originally thought to be the f ather’s sister but w ho was ultimately ascert ained to be t he

father’s c ousin. The third caret aker’s familial connect ion with the mother and father (if any) are unknown to the HSE. Ultimately all of

these c are arrangements broke down.

4. The c hildren left their last c aretaker in March 2013 alleging mistreatment. The HSE has not substant iated any suc h mistreatment

and this ca retaker has refused to acc ommodate the c hildren following the breakdown of their relationship. The children were formally

received into t he ca re of the HSE as they had no parent or legal guardian in this jurisdiction. Efforts made to contac t their birth

parents proven to be unsucc essful and it also t ranspired that the c hildren’s passports and travel doc umentation were not made

available by their father and so they were undoc umented in this jurisdiction.

5. The c hildren’s legal stat us in this jurisdiction is as “failed asylum seekers” following a failed application on their behalf (by their

putative st ep mother) to t he Office of Refugee Applications Commission (ORAC) in 2010. This dec ision is currently under appeal to t he

Refugee Appeals Tribunal (RAT) and legal representatives for t he children have also lodged an application for judicial review of t he

ORAC determination. The Court was informed that there is a possibility t hat t he children might be allowed “leave to remain” in this

jurisdict ion on humanitarian grounds as it has not been possible to identify a parent or parents with w hom they can be reunified in

their country of origin. Their father has failed to c ontact t he HSE for almost one year and t heir mother has not initiated conta ct with

the c hildren for several years and she has not made c ontact with the HSE. The c hildren are now both residing together in a residential

unit where they hav e sett led well and their needs are being met.

6. I am satisfied that every effort has been made by the HSE t o serve the parents with not ice of t hese proceedings. The fat her has

been served with not ice of the procee dings outside the jurisdiction at t he last known address which the HSE has for him in his

country of origin outside of the EU. He has also bee n notified by email at the email address that he used to c ontact with the HSE in

earlier years. The mother has not been s erved and her whereabouts are unknown to the HSE. The f ather has not responded to t he

proceedings served by registered post outside the jurisdiction and has not ac knowledged receipt of the email communication.

7. The f ather appears to have had no direct or indirect contact with the children since December 2012; I am satisfied on t he

evidence t hat t he children have been “abandoned” within the meaning of Sec tion 4(4) of t he 1991 Act. Although the c hildren’s

putative st epmother was their original kinship carer and has ac ted as “next friend” in the children’s’ High Court proceedings, she is not

their legal guardian and her relationship with the c hildren has broken down.

8. I am satisfied that the HSE has made contac t with the f ather during 2011 and 2012 and has explored the option of family

reunification pursuant to Sec tion 4(4) of the 1991 Act . The f ather expressed his unwilling to c ountenance family reunificat ion in his

country of origin and has not cont act ed the HSE in respect of t he proceedings.

9. I am satisfied that the Dublin Metropolitan District has jurisdiction to hear this applicat ion.

10. The views and interests of each of the c hildren were represented in these proce edings by their Guardian Ad Litem (GAL) who

indicated to the Court t heir support for a Care Order in respect of eac h child and recommended such Order for t he full duration.

DECISION

11. I have heard the ev idence of t he Allocat ed Social Worker and the Soc ial Work Team Leader.

12. I have also heard the e vidence of the GAL who supports t he HSE application and has approved the Care Plans for each child.

A. Having heard the evidence set out above, having c onsidered the findings of fac t submitted by the HSE and

having taken into ac count t he views, inte rests and wishes of the c hildren, indirectly e xpressed to the Court through

the GAL I am satisfied that, in respect of eac h of the children, the threshold criteria under S.18 (1) (c ) of t he 1991

Act are met and that each of the c hildren’s health, development and welfare w ould suffer if a Care Order were not