The Child and Family Agency v L.B.
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 12 July 2018 |
| Neutral Citation | [2018] IEHC 423 |
| Docket Number | [2018 No. 106 SS] |
| Court | High Court |
| Date | 12 July 2018 |
IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
AND
[2018] IEHC 423
[2018 No. 106 SS]
THE HIGH COURT
Child care – Case stated – Courts (Supplemental Provisions) Act 1961 s. 52 – District Judge seeking the opinion of the High Court by way of a consultative case stated – Whether the High Court was able to answer the questions in the case stated
Facts: The applicant, the Child and Family Agency, applied to the District Court for an order under s. 18 of the Child Care Act 1991 that the child of the respondents, who was born on 22nd December, 2016, be made subject to an order committing her to the care of the applicant for two years. The application was opposed by the first respondent, the child’s mother. District Judge O’Leary made an order that the child be placed in the care of the applicant for a period of six months from 22nd December, 2017, pending the determination of certain matters of law upon which he sought the opinion of the High Court by way of a consultative case stated pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 dated 22nd December, 2017. The applicant contended that the answer to the questions in the case stated should be that the Court is unable to answer them or alternatively that they should be answered in the negative. The applicant submitted that both the existence and the application of a power under s. 47 of the 1991 Act requires, as a matter of fact, that the welfare of the child be directly engaged and that no evidence pertaining to the child and no facts in relation to the child’s welfare had been found by the District Judge; it therefore followed that the High Court could not assess whether s. 47 arose in the proceedings pursuant to s. 52 of the 1961 Act. The respondent requested the Court to answer the questions in the affirmative. The respondent submitted that there is a fundamental presumption which arises under the provisions of Articles 42 and 42A of the Constitution, that it is in the best interests of the child to be raised by his or her parents and that it is only in exceptional circumstances that the child should be removed from the family and placed in the care of someone other than his or her parents.
Held by MacGrath J that to imply from the constitutional and statutory presumptions that there had necessarily been a finding of fact, albeit unexpressed, on a particular issue regarding the best interests of the child, would go a step further than is permitted by the jurisdictional limitations placed on the High Court by the provisions of s. 52 of the 1961 Act, as interpreted in both the High Court and the Supreme Court.
MacGrath J held that in the absence of a finding or findings of fact that it was in the best interests of the child, on the evidence considered, that the questions arose and should be answered, he was unable to answer the questions raised by the District Judge.
Case stated.
The applicant has applied to the District Court for an order under s. 18 of the Child Care Act 1991, as amended (‘ the Act of 1991’), that A.B., the child of the respondents, who was born on 22nd December, 2016, be made subject to an order committing her to the care of the applicant for two years. The application is opposed by legal representatives acting on behalf of the child's mother, the first respondent. Having considered the evidence and various reports submitted to him, District Judge O'Leary made an order that the child be placed in the care of the applicant for a period of six months from 22nd December, 2017, pending the determination of certain matters of law upon which he has sought the opinion of this Court by way of a consultative case stated pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961 dated 22nd December, 2017.
In the case stated the judge made the following findings of fact:-
‘(i) There is a presumption that the child's welfare is best provided for by being parented by a biological parent;
(ii) The first-named Respondent being the female parent in this case is a loving concerned conscientious mother who on such limited evidence as is before me cannot, due to mild intellectual disability among or in combination with other significant factors, provide adequate care for the child in the absence of either appropriate family support or an unascertained level of non-family support with basic care of the child;
(iii) The second-named Respondent being the male parent in this case takes no part in the care of the child or in these proceedings, although a party to and notified of them;
(iv) On such evidence as I have, appropriate family support is not available to the first-named Respondent,
(v) The evidence before me was to the effect that the content and level of the non-family support necessary for and appropriate to a parent in such circumstances are unique to that parent;
(vi) The cost of carrying out an assessment of the unique weaknesses and strengths of the parent or parents and the effect of their interaction on the parent's capacity in this case is uncertain but in any case is beyond the capacity of the parent in this case whose income is her Disability Allowance;
(vii) The effect of the basic care of the child being provided by professional services on the emotional and other development of the child has not been ascertained and is very significant having regard to the constitutional rights of the child to an opportunity for full personal development.’
District Judge O'Leary stated that he was minded to make orders under s. 47 of the Act of 1991 in the terms contained in the questions framed by him, as follows:-
‘Am I entitled to make orders under S.47 of the Child Care Act 1991 as amended directing the Child and Family Agency to:
1. Ascertain the cost of carrying out an appropriate assessment as to what services, if any, would be required and suffice to enable the first-named Respondent to parent the child to the maximum of her ability, having regard to her limitations and strengths and her rights as provided for by legislation, Bunreacht na hÉireann, and the European Convention on Human Rights, including in so far as her rights under the Convention are extended or defined by the International Convention on Rights of Persons with Disabilities;
2. Carry out such an assessment;
3. Provide such services as may be indicated by such an assessment, in the event that such assessment indicates that such services will enhance her capacity for parenting sufficiently to justify the provision of such services and that such parenting is in the interests of the child.’
The mother and her child were admitted to a parent and infant unit at the Bessborough Centre in January, 2017 when the child was three weeks old. The child's father was admitted at the same time but was later suspended as a result of threatening behaviour. The mother and child were discharged from Bessborough on 25th April, 2017 and an interim care order was made on 26th April, 2017. The discharge report recommended that the child be made the subject of a long term care order because, despite her best efforts, L.B. had not been able to demonstrate capacity to safely and consistently parent (a decision stated not to have been lightly made), and that if the child remained in the care of her mother she would not obtain a healthy psychosocial development and significant aspects of her care would be neglected or placed at risk.
At an early stage of the proceedings, the District Judge requested that a report be prepared by a psychologist pursuant to s. 27 of the Act of 1991. This section empowers the court to ‘ give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the child’. A psychologist prepared a report in which he accepted conclusions of an earlier report, known as ‘ the Bessborough report’, that L.B. did not have the capacity to provide a safe and appropriate level of parenting for her daughter such as to facilitate a reasonable emotional and physical developmental trajectory.
It is submitted on behalf of the applicant that the report obtained from the psychologist was made with the express purpose of identifying the supports, if any, which would be sufficient or necessary to allow the mother to parent her child on a full and part time basis. The applicant contends that the answer to the questions in the case stated should be that the Court is unable to answer them or alternatively that they should be answered in the negative. The respondent requests the Court to answer the questions in the affirmative.
Section 52(1) of the Courts (Supplemental Provisions) Act 1961 (‘ the Act of 1961’) provides:-
‘A justice of the District Court shall, if requested by any person who has been heard in any proceedings whatsoever before him (other than proceedings relating to an indictable offence which is not being dealt with summarily by the court) unless he consider the request frivolous, and may (without request) refer any question of law arising in such proceedings to the High Court for determination.’
Section 47 of the Act of 1991 provides:-
‘Where a child is in the care of the Child and Family Agency, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.’
Article 42A of Bunreacht na hÉireann 9. The thirty-first amendment of the Constitution inserted Article 42A which provides:-
‘1 The State recognises and affirms the...
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