Care Order refused following High Court ruling on Supervision Order – 2014vol1#8

A Care Order was refused by a District Court judge who had been ordered by the High Court to re-hear a matter that he had already heard. The High Court made findings concerning the type of directions that a court can give when making a Supervision Order.

The judge hearing the original matter had granted a Supervision Order in respect of two children and had imposed certain conditions alongside that order for the parents to comply with. A Care Order until 18 had previously been granted in respect of two older half siblings (children of the mother but not the father). Some of the directions attached to the Supervision Order included that the parents undergo parenting assessments, psychometric testing, counselling and psychotherapy.

An Emergency Care Order and subsequently an Interim Care Order had been previously granted in respect of the two younger children. The HSE had applied to the District Court for a continuation of the Care Orders for the two younger children. The District Court had refused to make the Care Orders but instead granted a Supervision Order under section 18 of the Child Care Act, 1991 and in so doing imposed certain conditions on the parents.

The family had originally come to the attention of the HSE when one of the older half-siblings had told Gardaí that she was being physically beaten by her step-father in the presence of her mother. A paediatrician who examined the child concluded that she thought that the bruising and linear marks on the child’s body were consistent with having been struck with an instrument.

The High Court

The parents challenged the conditions imposed on them by the District Court judge and sought relief in the High Court. They argued that there was no proper legal basis to make directions towards parents when granting a Supervision Order pursuant to section 19(1) of the 1991 Act. The High Court was asked to rule on the issue of whether positive obligations can be imposed on parents where a Supervision Order is granted.

The High Court noted that section 19(4) of the 1991 Act provides that the District Court is expressly empowered to require the parents of the child to cause the child “to attend for medical or psychiatric examination, treatment or assessment at a hospital, clinic or other place specified by the court.” The court noted that this is the only part of the section which imposes a positive obligation on the parents of a child in question.

The High Court held that parents cannot “be the subject of positive obligations of the kind that were directed by the District Court judge and embodied in the Supervision Order” The High Court noted that “it is fundamental to our legal order that something akin to medical treatment (such as, for example, psychotherapy) represents a voluntary choice on the part of the prospective client and that very clear and express language would be required before it could be assumed that the Oireachtas had given the District Court a power to impose a condition of this kind in respect of parents otherwise subject to a Supervision Order.”

The High Court concluded that section 19 of the 1991 Act gave no power to the District Court to direct a parental capacity assessment or to direct that parents take part in a course of psychotherapy. The directions contained in the District Court order were declared to be invalid by the High Court and the matter was remitted to the same District Court judge in order for him to re-hear the matter.

Remittal to the District Court

In reaching his new decision the District Court judge noted that he was not entirely happy with how the HSE had dealt with the case and noted that the relationship between the social workers and the parents seemed to have been toxic from an early stage. The judge also noted that the HSE could have been more forthcoming in giving credit where credit was due. The judge told the parties that he was satisfied that there was never a case of neglect and that there was no evidence of physical abuse.

The judge noted that the father had behaved in a dreadful manner and had made a large number of groundless allegations; “he has put his own interest in besting the HSE far above the interests of his two boys”. The judge went on to say that he had no doubt that the father had deliberately turned two of his children against the social workers and it was clear that he must have thwarted some of his children’s access with their siblings.

The judge said that he was wary and cautious about anything the father might say. He said that the father had sworn that he would do everything in his power to cooperate (with the social services) but had in fact done the opposite. The judge went on to say that while the HSE could have handled the case better that did not excuse how the father had behaved.

The judge, in reaching a decision, said that the most distressful course of action would be to grant the application of the HSE (the Care Order) and that despite the conduct of the father he was refusing the application for the Care Order.