McDonnell, Eastern Health Board v

• Jurisdiction: Ireland
• Judge: Mr Justice McCracken
• Judgment Date: 05 March 1999
• Neutral Citation: [1999] IEHC 123
• Docket Number: [1997 Nos. 384 J.R. and 387 J.R.]
• Court: High Court
• Date: 05 March 1999

[1999] IEHC 123

THE HIGH COURT

387 JR/1997

384 JR/1997

EASTERN HEALTH BOARD v. MCDONNELL

JUDICIAL REVIEW

BETWEEN

THE EASTERN HEALTH BOARD

APPLICANT

AND

DISTRICT JUDGE JAMES PAUL McDONNELL

RESPONDENT

AND

C. K.

FIRST NAMED NOTICE PARTY

AND

N. W.

SECOND NAMED NOTICE PARTY

AND

C. K. JUNIOR (A MINOR REPRESENTED BY HIS NEXT FRIEND BARBARA HUSSEY SOLICITOR)

THIRD NAMED NOTICE PARTY

EASTERN HEALTH BOARD v. MCDONNELL

BETWEEN

THE EASTERN HEALTH BOARD

APPLICANT

AND

DISTRICT JUDGE JAMES PAUL McDONNELL

RESPONDENT

AND

P. D.

FIRST NAMED NOTICE PARTY

AND

T. B.

SECOND NAMED NOTICE PARTY

Citations:

CHILDRENS ACT 1908 S2

CHILD CARE ACT 1991 S3

CHILD CARE ACT 1991 S13

CHILD CARE ACT 1991 S17

CHILD CARE ACT 1991 S18

CHILD CARE ACT 1991 S19(4)

CHILD CARE ACT 1991 S22

CHILD CARE ACT 1991 S24

CHILD CARE ACT 1991 S36(1)

CHILD CARE ACT 1991 S47

CHILD CARE ACT 1991 S18(2)

CHILD CARE ACT 1991 S18(3)

CHILD CARE (PLACEMENT OF CHILDREN IN RESIDENTIAL CARE) REGS 1995 SI 259/1995

CHILD CARE (PLACEMENT OF CHILDREN IN FOSTER CARE) REGS 1995 SI 260/1995

CHILD CARE (PLACEMENT OF CHILDREN WITH RELATIVES) REGS 1995 SI 261/1995

CHILD CARE ACT 1991 S22(B)

CONSTITUTION ART 40

CHILD CARE ACT 1991 S3(2)

Synopsis

Children

Judicial review; jurisdiction; statutory interpretation; application for leave for judicial review; respondent imposed conditions in respect of the care of child; whether the respondent acted intra vires; the jurisdiction of the applicant over minors; whether the respondent can impose conditions with regard to the child which restrict the power of the applicant after a child care order was made; ss.24 and 47, Child Care Act, 1991

Held: Relief refused; s. 47 is intended to give overall control of the child to the District Court; court's statutory obligation to have regard to the welfare of the child cannot be delegated to the applicant; District Court should only interfere in circumstances which could reasonably be considered to adversely affect the welfare of the child

Eastern Health Board v. Judge McDonnell - High Court: McCracken J. - 05/03/1999 - [1999] 1 IR 174

It is the function of the courts to ensure that constitutional guarantees are upheld and therefore where the welfare of a child is concerned a very clear delegation of powers will be required before it can be said that the discharge of obligations in that respect fall exclusively on a body other than a court. The High Court so held in saying that the respondent had ample grounds to make the directions he did and refusing the relief sought.

1 Mr Justice McCracken delivered the 5th day of March 1999.

2 I have heard these two cases together and, although the background facts in each case differ, the point of principle at issue is the same and therefore I propose only to deal with the facts in the first case. I will refer to the child in that case throughout as CK.

BACKGROUND

3 The first and second Notice Parties are the parents of CK, who co-habited for some time, but were not married and are now living apart. I do not think I am concerned with the particular facts which gave rise to the application to have CK taken into care, as the issue in this case is an issue of jurisdiction and of interpretation of the Child Care Act, 1991.

4 On 14th October, 1994 a summons was issued in the District Court on behalf of the Applicants pursuant to Section 24 of the Children's Act, 1908 seeking to have CK committed to the care of the Applicants. For some reason which is not clear to me the hearing of this summons did not come before the District Court until 15th May, 1996, but there followed a very full hearing on the facts of the case before the Respondent over a number of days between 15th May, 1996 and 6th December, 1996.

5 On 17th December, 1996 the Respondent made an order committing CK to the care of the Applicant and adjourned the matter for judgment at a later date. On 26th March, 1997 the Respondent delivered a twelve page judgment dealing extensively with the history of CK and his relationship with the first and second Notice Parties, and gave certain directions which were incorporated in his order of that date which I think I ought to quote in full to indicate the nature of the jurisdiction undertaken by the Respondent. The relevant portion of the order reads:-

"THE COURT DOTH ORDER in the context of the judgment delivered herein:-"

1. That the next Social Worker allocated by the Eastern Health Board to this case should not be a new recruit because of the complexity of the case.

2. That the Eastern Health Board prepare a Care Plan for CK (a child) within three months of the 26th March, 1997 and that the same be submitted to Dr Tom Moran for a report by him on the proposed Child Care Plan.

3. That these proceedings should be re-entered at a date six months hence for consideration of the Care Plan.

4. That the Solicitors for the Eastern Health Board shall lodge all reports with the Registrar of the Court at least one working week in advance of the said adjourned hearing.

5. That pending receipt of the Care Plan and of Dr Moran's report the following directions are given concerning the child's care:-

(i) There should be no plan to change the foster parents without the prior leave of the Court. In the event of an emergency change of foster placement being required then the Solicitors for the Eastern Health Board shall re-enter these proceedings in Court for the Court's direction on such change either immediately before or after such change.

(ii) There shall be no change of the Social Worker assigned to this child by the Eastern Health Board without notice to this Court having regard to Dr Moran's specific concerns on this issue.

(iii) The first named Respondent's access to this child shall be supervised by the Eastern Health Board and conducted on Eastern Health Board premises...

(iv) That the second named Respondent have a regime of access which shall be so structured with a view to enable him to enjoy overnight access at his home.

(v) That CK not be sent for any therapy without prior reference by the Eastern Health Board to Dr Tom Moran and the leave of the Court."

6 In the second case an order was also made directing the Applicant to prepare a full Care Plan within three months and to submit it to Dr Moran, although there were not such stringent conditions attached to the order in that case as there were in the case of CK.

THE ISSUE

7 The issue in this case is very simple, namely whether the Respondent acted intra vires in giving the directions set out in his order of 26th March, 1997. This can be reduced to the even more basic issue as to whether under the Child Care Act, 1991the District Court can retain or impose some form of control or conditions with regard to the care of a child which restrict the operation of the Applicant after a Child Care Order has been made. I will deal in more detail subsequently with the arguments put forward on behalf of both parties.

STATUTORY PROVISIONS.

8 As the determination of the issue depends primarily on the interpretation of the Child Care Act, 1991, and both parties have relied on different provisions under the Act, I think it advisable to quote or refer to all provision of the Act which are considered by either of the parties to have some relevance. These are as follows:-

9 2 "3(1) It shall be a function of every Health Board to promote the welfare of children in its area who are not receiving adequate care and protection.

10 (2) In the performance of this function, the Health Board shall:-

11 (a) Take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

12 (b) Having regard to the rights and duties of parents, whether under the Constitution or otherwise:-

13 (i) Regard the welfare of the child as the first and paramount consideration, and

14 (ii) Insofar as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child:

15 (c) Have regard to the principle that it is generally in the best interests of a child to be brought up in his own family.

16 (3) A Health Board shall, in addition to any other function assigned to it under this Act or any other enactment, provide child care and family support services, and may provide and maintain premises and make such other provision as it considers necessary or desirable for such purposes, subject to any general directions given by the Minister under Section 69".

17 Section 13, which it is not necessary to quote, provides for the making of emergency Care Orders by the District Court for limited periods, and that the District Court may give directions on certain matter when making such orders.

18 Section 17 similarly provides for interim Care Orders to be made by the District Court for limited periods, and again provides for directions to be given by the Court when making such orders.

19 Section 18 deals with Care Orders and reads as follows:-

20 2 "18 (1) Where, on the application of a Health Board with respect to a child who resides or is found in its area, the Court is satisfied that:

21 (a) The child has been or is being assaulted, ill-treated, neglected or sexually abused, or

22 (b) The child's health, development or welfare has been or is being avoidably impaired or neglected, or

23 (c) The child's health, development or welfare is likely to be avoidably impaired or neglected, and that the child requires care or protection which he is unlikely to receive unless the Court makes an Order under this Section, the Court may make an Order (in this Act referred to as a "Care Order") in respect of the child.

24 (2) A Care Order shall commit the child to the care of the...