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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> East Coast Area Health Board v. M. (M.) & Anor [2002] IEHC 172 (5 February 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/172.html Cite as: [2002] IEHC 172 |
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No. 2709 SS 2001
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTY
Judgment of Mr. Justice Finnegan delivered on the 5th day of February 2002
This matter comes before me by way of a Consultative Case Stated pursuant to section 52(1) of the Courts (Supplemental Provisions) Act, 1961. The proceeding giving rise to the Consultative Case Stated is an application to the District Court pursuant to the Child Care Act, 1991 section 47. The Child Care Act, 1991 section 47 provides as follows:-
"47 Where a child is in the care of a health board, 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."
On the application to the District Court the Applicant sought an Order committing the Notice Party to reside in a residential unit situate at St. Helen's, Merseyside, United Kingdom for as long as is considered in the Notice Party's best interests. Having heard evidence the learned District Judge found that the health, development and welfare of the Notice Party was likely to be avoidably impaired and neglected and that he required care and protection which he is unlikely to receive and accordingly made a Care Order pursuant to the Child Care Act, 1991 section 18(1). He then heard submissions as to his jurisdiction to authorise placement of the Notice Party outside the jurisdiction. My Judgment in The Western Health Board, Applicant and K.M., Respondent delivered on the 14th March 2001 was opened to the learned District Judge. That Judgment concerned a proposed placement outside the jurisdiction with a relative and/or foster parent and so differed from the instant application which proposed placement in residential care. The questions of law for determination of the High Court in The Western Health Board, Applicant and K.M., Respondent were as follows:-
"In relation to a child who is in the care of a health board pursuant to section 18 of the Child Care Act, 1991-
(i) Can the health board lawfully place the child with relatives or foster parents outside the State pursuant to the provisions of section 36 of the said Act?
(ii) Can the District Court lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of section 47 of the said Act?
(iii) If the answer to question (i) and/or question (ii) above is yes can the period for which the child is so placed be limited? "
The answer which I gave to the questions posed was as follows:-
(i) No.
(ii) Yes.
(iii) Yes.
My decision was appealed to the Supreme Court in relation to the answers to questions (ii) and (iii) only.
With regard to the powers of a health board pursuant to the Child Care Act, 1991 section 36 that section in sub-section 1 contains the phrase "Subject to its control and supervision." Further the Act in section 18(3) provides that a health board may give consent to the issue of a passport to the child or to the provision of passport facilities for him to enable him to travel abroad for a limited period. These provisions in the context of the Act as a whole persuaded me to hold that a health board could not send a child the subject of a Care Order abroad having regard to the requirement of section 36(1) that the provision of care should be subject to its control. Having so decided and my decision not having been appealed and the circumstances in the present case being indistinguishable the first question of law for determination of this court must be answered in the affirmative.
With regard to the second question it is necessary to enquire as to whether there is anything in section 47 of the Act on its true construction to distinguish a child the subject matter of a Care Order being sent abroad to a relative and/or foster parents from such a child being sent abroad into residential care. I can find nothing in section 47 or in the Statute as a whole to require such a distinction being drawn. In these circumstances the decision of the Supreme Court in The Western Health Board, Applicant and K.M., Respondent on questions (ii) and (iii) posed there applies equally to questions (ii) and (iii) posed for my determination."
Accordingly the answer to the questions posed in the Consultative Case Stated is as follows:-
(i) No.
(ii) Yes.
(iii) The period for which the child is placed in a residential unit pursuant to the provisions of the Child Care Act, 1991 section 47 can be unlimited or limited.