A rural District Court judge refused an application made on behalf of an unaccompanied minor, originally from the Ukraine, to direct the Child and Family Agency (CFA) to prepare an aftercare plan for him on the basis that the court lacked the jurisdiction to make directions under s47 of the Child Care Act 1991 in the circumstances. He accepted the CFA argument that the child was not legally in care.
The teenager, who was going to turn 18 years of age four days after the application hearing date, was in foster care. He did not have an allocated social worker nor had a guardian ad litem (GAL) been appointed to his case. However, a solicitor and barrister represented him in court.
The youth was supported by an EPIC advocate who was acting as his next friend for the purposes of the section 47 application. He was accompanied to the District Court by his foster carer but his advocate and next friend had been unable to attend court for the application.
Counsel for the boy told the judge that the youth was present in the court in order to give oral evidence regarding certain aspects of his application. Counsel asked the judge if the in camera rule could be lifted to allow the foster carer be present in the court room to support the boy.
The solicitor representing the CFA objected to the in camera rule being lifted as he understood that the foster carer would be giving evidence to the court.
The judge said that he had read the affidavits that had been submitted to the court but that they were light on details. The boy’s counsel said that she would be contesting the contents of some of the affidavits on the basis that some of the documents were undated and/or unsigned. She said that she would be calling on the teenager to give evidence to the effect that the signature on one of the documents, which allegedly had been signed by him, was not his signature and that he had not met with the social worker referred to in that document. The boy’s counsel also said that another document in the child’s file, which was in Ukrainian, related to consent for another child, not the youth, and that he was ready to give evidence to the court to support these assertions.
The CFA’s solicitor told the court that it was the CFA’s position that the child was not in care and that therefore no directions could be made by the court pursuant to Section 47 of the Child Care Act 1991. He noted that there were no Section 17 or Section 18 (care) applications on the file in respect of the youth and that if a child was in fact in care, there would be much more documentation on the file supporting the case to take him into care.
Counsel for the boy contended that the youth was in care pursuant to Section 4 of the 1991 Act (voluntary care), and had not simply been provided with accommodation pursuant to Section 5 of the 1991 Act, as the CFA had claimed. This section relates to the CFA providing “reasonable” accommodation for homeless children who are not in care.
She referred the judge to two previous decisions of the District Court finding that children were in care. In the first case, CFA v MC [2015] IEDC 10, the court found that children who had been in voluntary care and had remained long past the expiry of the voluntary care form, which had been signed for three months and had not subsequently been renewed, were in care. In the second case, CFA v A [2017] IEDC 05, the court found that a child had remained in voluntary care despite the fact that the parents had refused to sign an admission into care form.
Counsel argued that the circumstances in which the youth found himself were analogous to the circumstances giving rise to the above decisions. She said that despite the absence of a signed consent form, the decisions supported the case that the boy should be deemed to be in voluntary care pursuant to Section 4 of the Child Care Act 1991. She said that his mother had given consent to her son being in voluntary care and had, at all times, understood that her son was a child in care.
The judge told counsel for the boy that he was not with her in this regard. He said that he did not have the jurisdiction to make the order being applied for and that, with regret, he was refusing the application. It was the judge’s view that he would be clearly exceeding his jurisdiction if he were to do so. The judge asked if there were any plans in place for the youth and was told by counsel that the extent of the plan in place was that the youth had been sent an email that had the address of a hostel.
The judge reiterated that he could only make a Section 47 direction if the child was in care. However, he said that it was open to counsel to take the matter up with the Circuit Court and that he could make a direction to the office that the matter be heard as soon as possible. He recognised that the youth would age out in four days’ time and even if such direction were made, the Circuit Court would not be able to facilitate a further hearing of the matter that quickly.
On the basis of the above, the judge refused the Section 47 application.
