Western Health Board v K.M.

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 21 December 2001
• Neutral Citation: [2001] IESC 104
• Court: Supreme Court
• Docket Number: [S.C. No. 103 of 2001]
• Date: 21 December 2001

WESTERN HEALTH BOARD v. M (K)

IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

BETWEEN

THE WESTERN HEALTH BOARD

APPLICANT/RESPONDENT

AND

KAREN M

RESPONDENT/APPELLANT

[2001] IESC 104

Denham J.

Murphy J.

Murray J.

McGuinness J.

Hardiman J.

Record No. 103/2001

THE SUPREME COURT

Synopsis:

FAMILY LAW

Children

Health boards - Children and young persons - Powers and duties of health boards - Statutory interpretation - Child care order - Definition of "guardian" - Functions of District Court - Whether health board could authorise placement of children outside of State - Adoption Act, 1952 - Child Care Act, 1991 sections 18, 36, 47 (103/2001 - Supreme Court - 21/12/01) - [2002] 2 IR 493

Western Health Board v M (K)

The proceedings concerned the placement of children by a health board outside the jurisdiction. The Health Board (the applicant) sought to place the child with a relative who lived in England. The matter came before the District Court who stated a case for the opinion of the High Court. Finnegan J was satisfied that the District Court was entitled to direct the placement of a child outside the State pursuant to section 47 of the Child Care Act, 1991. The respondent (who was the mother of the child) appealed against the judgment arguing that the High Court had erred in law in so holding. It was submitted that the District Court had only a supervisory jurisdiction in such matters and section 47 of the Child Care Act, 1991 should be given a restrictive interpretation. Counsel on behalf of the Health Board submitted that the section should be given a purposive interpretation and the Child Care Act, 1991 was intended to operate effectively in the realities of life in the State in the twentieth century. This would reflect issues such as emigration and increased mobility regarding employment opportunities.

Held by the Supreme Court (McGuinness J delivering judgment) in dismissing the appeal. The Child Care Act, 1991 should be approached in a purposive manner. The powers contained in section 47 included the power to direct the placement of a child outside the State where the evidence indicated that such a placement was truly in the best interests of the child. Such an order must be made rarely and with considerable caution and the Health Board would continue to have responsibility for the welfare of the child concerned.

Citations:

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

M (K), STATE V MIN FOR FOREIGN AFFAIRS & AG 1979 IR 73

ADOPTION ACT 1952 S40(3)

F (M) V SUPERINTENDANT BALLYMUN GARDA STATION 1991 1 IR 89

CHILD CARE ACT 1991 (COMMENCEMENT) ORDER1995 SI 258/1995

CHILD CARE ACT 1991 S4

CHILD CARE ACT 1991 S6(3)

CHILD CARE ACT 1991 S6(4)

CHILD CARE ACT 1991 S12

CHILD CARE ACT 1991 S13

CHILD CARE ACT 1991 S14

CHILD CARE ACT 1991 S15

CHILD CARE ACT 1991 S16

CHILD CARE ACT 1991 S17

CHILD CARE ACT 1991 S18

CHILD CARE ACT 1991 S19

CHILD CARE ACT 1991 S20

CHILD CARE ACT 1991 S21

CHILD CARE ACT 1991 S22

CHILD CARE ACT 1991 S23

CHILD CARE ACT 1991 S24

CHILD CARE ACT 1991 S25

CHILD CARE ACT 1991 S26

CHILD CARE ACT 1991 S27

CHILD CARE ACT 1991 S28

CHILD CARE ACT 1991 S29

CHILD CARE ACT 1991 S30

CHILD CARE ACT 1991 S31

CHILD CARE ACT 1991 S32

CHILD CARE ACT 1991 S33

CHILD CARE ACT 1991 S34

CHILD CARE ACT 1991 S35

CHILD CARE ACT 1991 S36

CHILD CARE ACT 1991 S37

CHILD CARE ACT 1991 S38

CHILD CARE ACT 1991 S39

CHILD CARE ACT 1991 S41

CHILD CARE ACT 1991 S42

CHILD CARE ACT 1991 S43

CHILD CARE ACT 1991 S44

CHILD CARE ACT 1991 S45

CHILD CARE ACT 1991 S46

CHILD CARE ACT 1991 S48

CHILD CARE ACT 1991 S68

CHILD CARE ACT 1991 S68

CHILD CARE ACT 1991 S69

CHILD CARE ACT 1991 S70

CHILD CARE ACT 1991 S71

CHILD CARE ACT 1991 S72

CHILD CARE ACT 1991 S73

CHILD CARE ACT 1991 S74

CHILD CARE ACT 1991 S75

CHILD CARE ACT 1991 S76

CHILD CARE ACT 1991 S77

CHILD CARE ACT 1991 S78

CHILD CARE ACT 1991 PART V

CHILD CARE ACT 1991 PART VI

CHILD CARE ACT 1991 S3(1)

CHILD CARE ACT 1991 S3(2)

CHILD CARE ACT 1991 S3(3)

CHILD CARE ACT 1991 S9(1)

CHILD CARE ACT 1991 S9(2)

CHILD CARE ACT 1991 S9(10)

CHILD CARE ACT 1991 S16

CHILD CARE ACT 1991 S18(1)

CHILD CARE ACT 1991 S18(2)

CHILD CARE ACT 1991 S18(3)

CHILD CARE ACT 1991 S24(A)

CHILD CARE ACT 1991 S24(B)

CHILD CARE ACT 1991 S28(1)

CHILD CARE ACT 1991 S28(2)

CHILD CARE ACT 1991 S36(1)

CHILD CARE ACT 1991 S36(2)

CHILD CARE ACT 1991 S36(3)

CHILDREN ACT 1908

GUARDIANSHIP OF INFANTS ACT 1964 S11

BANK OF IRELAND V PURCELL 1989 IR 327

HOULIHAN, DPP V G (P) 1996 1 IR 281

EASTERN HEALTH BOARD V MCDONNELL 1999 1IR 174

H & H, RE 1988 2 FLR 431

R V UNITED KINGDOM 1988 2 FLR 445

M & D, STATE V MIN FOR FOREIGN AFFAIRS 1979 IR 73

ADOPTION ACT 1952 S40(1)

ADOPTION ACT 1952 S40(2)

ADOPTION ACT 1952 S40

ADOPTION ACT 1952 S3

ADOPTION ACT 1952 S47

1 Judgment of Mrs Justice McGuinness delivered the 21st day of December 2001[nem diss]

2 This is an appeal from a judgment and order of the High Court (Finnegan J.) on a Consultative Case Stated. The question of law in the Case Stated was referred to the High Court pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961, by Judge Mary Devins of the District Court at the request of both the Applicant and the Respondent. The proceedings before the District Court concern a child who is in the care of the Applicant/Respondent pursuant to a Care Order made under Section 18 of the Child Care Act 1991.The Respondent/Appellant is the mother of the child. The Applicant/Respondent ( "the Health Board") seeks to place the child in the foster care of a relative of the Respondent/Appellant ( "the mother"). This relative resides in England. The Health Board has made an application to the District Court pursuant to Section 47 of the Child Care Act 1991for a direction that the child be so placed.

3 The Consultative Case Stated is set out by the learned judge of the District Court as follows:

4 a "(a) The proceedings herein come before me by way of an application pursuant to Section 47 of the Child Care Act 1991for directions on the questions affecting the welfare of a child in the care of a Health Board and, more specifically "whether it would be in the best interests of the above named child Thomas M to be placed in foster care with a cousin of Karen M in the United Kingdom"...At a hearing of the proceedings before me on the 28th day of February 2000 the direction sought herein by the Applicant was amended on consent to read as follows:-

5 "That the above named child Thomas M be placed in care with a cousin of Karen M in the United Kingdom".

6 (b) When the matter came before me on the 28th day of February 2000 the following witnesses gave evidence at the hearing namely: for the Applicant, Aisling Ryan and for the Respondent, the Respondent herself. The facts admitted or proved before me are as follows:

7 1. The infant Thomas M was born on the 19th day of May 1996. The Respondent, who is not married, is the infant's mother. Arising from concerns felt by the Applicant due to the Respondent's psychiatric condition and inability to care for the infant an Emergency Care Order was sought and obtained on the 7th day of June 1996, an Interim Care Order was sought and obtained on the 19th June 1996 and further Interim Care Orders were sought thereafter until the final hearing of the said care proceedings on the 22nd day of June 1997. On that occasion an order was made pursuant to Section 18 of the Child Care Act 1991committing the infant to the care of the Applicant until he attained the age of eighteen years. The basis for the making of the said order was the Respondent's inability to care for the said infant due to her ongoing psychiatric difficulties.

8 2. At all material times since the infant was first committed into the care of the Applicant he has been placed by the Applicant in the care of foster parents in the County of Mayo. At all material times the Applicant perceived the said placement as being a short term placement only as the said foster parents were not in a position to offer the infant long term fosterage. In or about the early part of 1999 the issue of the long term care of the infant was under active consideration by the Applicant herein. The Applicant was approached by a married couple resident in Kent, England, namely Imelda and Peter Hewitt. Imelda Hewitt is a cousin of the Respondent. The Hewitts indicated to the Applicant that they were interested in fostering the infant on a long term basis. Once this had been indicated the Applicant arranged for an assessment to be carried out on the Hewitts by the child care authority in England in whose functional area the Hewitts resided, namely Kent Social Services. The outcome of the said assessment was satisfactory. The witness for the Applicant gave evidence in her opinion as a professional (the said witness being a social worker employed by the Applicant) that it was generally better that children be placed with relatives and it was her further opinion that the particular infant in this case should be placed with relatives and more particularly with the Hewitts in England. In cross examination the witness gave evidence that while it would not be unusual for the relatives of a child in care to contact the Applicant with respect to placement of a child with them, that it would be unusual for such contact to be made where there was no relationship between the relatives and the parent or parents of the infant in question. She further gave evidence that as far as she was aware there was no relationship between the Hewitts and the Respondent. (sic) On the evidence of the witness for the Applicant Imelda Hewitt was aged somewhat under 50 and Peter Hewitt somewhat over 50. On further cross-examination the witness for the Applicant indicated that...