Health Service Executive -v- SH & anor (Private Placement Funding)

• Judge: Toale J.
• Judgment Date: 09 February 2012
• Neutral Citation: [2012] IEDC 3
• Case Outcome: Approved
• Date: 09 February 2012
• Court: District Court (Ireland)

[2012] IEDC 3

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SH & JB

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF A CHILD

9 February 2012

1. The c hild who is the subjec t of these proc eedings (“the c hild”) is a boy aged 11 years. He has been in the c are of t he HSE since

late 2009, initially pursuant t o an emergency c are order under section 13 of t he Child Care Act 1991 (“the CCA”), t hen, on the

expiration of that emergency c are order, pursuant to a n interim care order under sec tion 17 of t he CCA and a c onsiderable number of

extensions of that interim order, and ultimately pursuant to a care order made in late 2010 under section 18 of t he CCA. The care

order continues in force until his 18th birthday. The proce edings have remained before the court f or the purpose of review of matters

relating to that care order.

2. The GAL was appointed to t he child in April 2010 and remains appointed.

3. It is generally recommended that children less than 12 years of age and who are in the ca re of the HSE should not, except in

exceptional circumstanc es, be plac ed in residential care, i.e t hat t hey should be placed in fos ter c are. This is c onfirmed in the

‘National Policy in relation to the plac ement of children under 12 years in the c are and cust ody of t he HSE’ issued by the Off ice of the

Minister for Children and Yout h Affairs, and is also a recommendation of t he National Children in Care Inspection Report issued by HIQA

in 2008 (page 82 recommendation number 17). Upon his reception into the care of the HSE, t he child, who was then aged about 9

years and 6 months, was plac ed in residential care. He presented w ith a seve re behavioural disorder and significant difficulties in the

area of a se cond behavioural disorder, and with severe emotional and behavioural difficulties. Reports indicate place ment in residential

care was required at that time, and no issue arises in this regard.

4. Within a short t ime of his rec eption into c are, the a ct ing social workers and others involved in his care formed the view t hat fos ter

care, rat her that residential c are, would be more suitable and beneficial for the c hild. Placement in foster c are was, however, not

immediately pursued, apparently for the good reason t hat t here was in existence of a plan t o reunify the c hild with his parents and it

was felt that, on balance, it would not benefit the c hild to move him to a foster plac ement (which would be unfamiliar to him) for

what was then ant icipated t o be a short period prior to reunificat ion with his family.

5. Regrettably, it t ranspired that the reunification plan was not viable. This was s pecifically rec ognised and recorded at a child in care

meeting in May 2010. This meeting also rec orded that t he residential placement where the child was place d was unsuitable (which

view was c onfirmed by the staff of t he residential unit where the c hild is placed), that foster care plac ement was the only suitable

option for the c hild, that the c hild would thrive in long term foster c are, and t hat t he plan for the c are of t he child should be to s eek

a suitable long term foster placement for t he c hild until his 18th birthday.

6. Sect ion E of t he care plan prepared for the child by the HSE dat ed February 2011 specifically st ates that “t he c hild is

inappropriately placed” [in his residential placement].

7. Since t he child in care meeting of May 2010, it has been and it remains the position of t he HSE that placement in foste r care is t he

best opt ion for the c hild, and this position is fully endorsed by the GAL. For t he removal of any doubt, I find that it is the professional

opinion of all professionals involved in the c hild’s care that his present place ment is unsuitable, and that his we lfare would be best

served by placement in a fo ster c are placement. It is c lear that this is the professional opinion of the HSE. The referenc e at

paragraph 36 of the HSE submissions to t he child’s placement in a long-t erm foster placement as t he “preference” of the HSE does

not adequate ly reflect that professional opinion.

8. The c hild has at all times since his rec eption into c are remained in his original placement in residential care. T here is not and never

has been any quest ion or issue about the care provided to the c hild in this placement – the issue t hat does arise is the suitability of a

residential placement for a child of t his age, and the professionals from the placement themselves endorse the view that the

placement of t he child in their facility is not suitable.

9. Since May 2010, the HSE has made very considerable efforts to se cure a fos ter placement for t he child, without succ ess.

10. The c ontinued placement of t he c hild in residential care has remained of great conc ern to the social work team, to the GAL, and

to t he court. When the c are order was made, the proc eedings were listed for review f or a number of reasons, one of whic h was for

the HSE to f urnish the court w ith a report regarding the placement of the c hild in foster care. T his issue of t he placement of t he child

in foster c are has c ontinued to be s ubject t o review by t he c ourt.

11. The c hild’s parents have not at tended any of the review hearings held since the granting of t he c are order.

12. Funding a foster plac ement for the c hild has been an issue since May 2010, more particularly whether t he HSE would be prepared

to fund a “private ” placement, i.e. a placement sourced t hrough a private agency rather than a plac ement sourced direct ly through

the HSE. At the c hild in care meeting of May 2010, it appears t hat t he GAL requested that the HSE c onsider “private” foster

placement, and that the HSE would not consider “private” place ment at that time due to a lack of availability of “private” carers in

the Dublin area and the absence of funding for same. Subsequently, it appea rs from reports t hat t he HSE did approach private

agencies, as is mentioned in a report for court dat ed 8 April 2011, which refers to t wo suc h agencies, w ho are reported not t o have

places available for t he child, and further in a report of 7 September 2011 at heading 3.1 final paragraph. Thereafter, it appears t hat

the HSE again stat ed that it would not fund a “private” fos ter placement for t he child.