In late 2017 a case was heard in the District Court of a provincial city concerning an application by the Child and Family Agency (CFA) for a care order for an infant child for a two-year period on the grounds that the mother could not meet the child’s needs due to her intellectual disability. The mother’s solicitor challenged the application on the basis that the CFA had not undertaken a full and comprehensive assessment to identify the mother’s strengths and needs and what supports could be in place to support her to parent her child.
The court made a six-month care order in respect of the child.
In addition, pursuant to s. 52 of the Courts (Supplemental Provisions) Act 1961, the District Court judge stated a consultative case to the High Court to seek the guidance of the court on the extent to which the District Court can direct services and supports under s. 47 of the Child Care Act 1991. The High Court heard the case stated in June 2018 and issued a written judgment on 12 July 2018.
The case stated comprised three questions. The judge asked: “Am I entitled to make orders under s.37 directing the CFA to:
- “Ascertain the cost of carrying out an appropriate assessment as to what services, if any, would be required and suffice to enable the
- Carry out such an assessment;
- 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.”
During the proceedings legal arguments were put forward about the purpose and scope of s.47 of the Child Care Act 1991, including the extent to which it can be applied to the parent of a child who is the subject of child protection proceedings.
The discussions also explored the function and scope of a case stated, including the need to avoid engaging with a moot question, and the duties that arise from the constitutional obligation for proportionate decision-making in child care law.
Senior counsel for the CFA argued that the case stated was flawed as it did not contain sufficient information or evidence of findings of fact. He noted that the High Court could not review material outside of the documentation provided for the case stated. He warned that the High Court must not stray into the territory of hearing evidence or making findings of fact as these functions are reserved for the decision-maker, who in this case was the District Court.
In addition, the barrister for the CFA argued that the case stated did not fall within the scope of s.47 as it was not focused on the child’s welfare or best interests, instead it was approached from the mother’s perspective. He also raised concern that the High Court was being asked whether it is lawful for the District Court to make an order for a service in circumstances where that service remained unidentified. Furthermore, the service had yet to be the subject of a decision as to whether or not it would be in the interests of the particular child.
The barrister said: “The proportionality of whether a child should be placed in care can only be assessed by reference to what the alternatives are.” He also noted that in the context of a s.18 care order application, the mother’s capacity to parent her child “to the maximum of her ability” was not the test, the threshold for a s.18 order is whether or not the parent can adequately protect the child.
In response, senior counsel for the mother argued that the case stated did contain findings of fact that were “more than adequate to explain and justify the questions asked”.
The findings included that the mother could not care for her child, the father was not involved in the child’s care, family support was not available to the mother, that the level of non-family support would be required to allow her to parent her child depended on her unique circumstances, the cost of such support was beyond the resources of mother, and that the effect of such care on the child had not been ascertained but would be very significant regarding the child’s rights.
The barrister for the mother disagreed with the statement made that the case stated had lost sight of the interests of the child, he argued that the child’s interests and constitutional rights were the central issue. He said: “The overall nature of the questions is to ascertain if the District Court has the power to do certain things that he [the judge] believes are in the interests of the child.”
He said the case was framed in terms of the constitutional duty to ensure intervention in family life was proportionate. “All the questions are designed to see if there is a method to enable the child to remain with her parent”. He added: “If you can protect the child by leaving the child with the mother that is proportionate – you must take that route – if you can show that route then that route must be pursued”. If the court could identify a proportionate route than it must take that route.
While acknowledging the “very considerable difference” between Irish and English child care law, he drew attention to relevant English case law concerning parents who were intellectually challenged. He said: “How far support should go or not go rests with the court – the court is entitled and actually obliged to have the necessary information before it makes that decision”.
He also referenced relevant European Court of Human Rights jurisprudence, including Saviny v Ukraine. He summarised that under the Irish Constitution and English and European jurisprudence “if there is way to do it without splitting up the family then it is obliged to do it”. The District Court “is obliged to consider whether a less radical intervention than a removal of the child can provide a protection for the child”.
In relation to disability, the senior counsel noted that the duty under s.5 of the Equal Status Acts to not discriminate against the mother on grounds of a disability and the duty under s.4 to make “reasonable accommodation” applied to the CFA in carrying out its functions, including taking a child into care. The CFA must not operate “in such a way that it discriminates against a person with a disability”.
The barrister asserted that it was his opinion that the District Court judge had the power to order the assessment and had a constitutional obligation to do so. He noted that the judge was only asking did he have the power to make the order and “how it plays out after that depends on what he finds in the assessment”. He acknowledged that cost would be a factor to be considered in the judge’s decision-making as to whether to order the provision of the service identified by the assessment, noting that “there is not a blank cheque”. He said the judge was obliged to carry out this type of assessment but what the court did with the assessment “is a matter of enablement in accordance with law”.
Senior Counsel for the CFA said that the case as “a classic moot”. He argued that use of the term proportionate under Article 42A was “not a significant change” in terms of the approach to be taken. He reminded the court that an assessment was carried by a psychologist. He said the effect of the High Court answering the question in its current form in the affirmative would be “pre-approval for the District Court judge to order services that are at this time unascertained unidentified”. He said the case stated was looking for a decision to be made “in the abstract, in a vacuum”.
He challenged the legal points made by the senior counsel for the mother. He noted that the operation of the care system and the proportionality test in English law differs from that of Irish law and pointed out that in Saviny case “no proper assessment” had been carried out. He also commented that there was no finding in the case stated documentation that the mother was disadvantaged because of her disability.
Junior counsel for the mother rejected the notion that the case stated was a moot saying that “the questions need to be seen in a sequence”. She also pointed out that Saviny was relevant, as while an assessment had been carried out in case, the facts set out in the case stated noted that “there has not been an appropriate assessment in this case, a tailored assessment”. She said: “We need to trust the judge that he is looking for something else and believes it is necessary”.
The judgment in the High Court case stated was delivered by Justice MacGrath on 12 July 2018. The judge ruled that he was unable to answer the questions that the District judge had raised due to an absence of a finding or findings of facts that it was in the best interests of the child, on the evidence considered, that the questions raised should be answered.
Outlining the arguments, the judge wrote that in the case stated the District Court judge had listed findings of fact which included that the CFA (the applicant) had applied to the District Court for a full care order under s. 18 of the Child Care Act 1991. The mother (the respondent), who has a mild intellectual disability, had been found unable to provide adequate care for the child in the absence of support, the level of which support had been unascertained. The respondent had opposed the care order proceedings and the judge had noted that appropriate family support was not available to the mother.
The solicitor for the mother had sought a private independent assessment of the non-family support necessary for and appropriate to the mother in order to ascertain her parental capacity with such support, however the cost of the assessment was beyond the mother’s means whose income was a Disability Allowance.
The District judge had also found that there “is a presumption that the child’s welfare is best provided for by being parented by a biological parent” and that “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.”
The mother and infant had been admitted to a residential child and parent centre when the child was three weeks old. They were discharged four months later and an Interim care order was granted the following day. The discharge report from the centre had recommended that the infant be made the subject of a long-term full care order due to the fact that the mother had been unable, despite her best efforts, to demonstrate capacity that she could safely and consistently parent. The report had also stated 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.
During the s. 18 proceedings, the District Court judge had requested a psychologist’s report under s. 27 of the 1991 Act. In his parental capacity assessment the psychologist accepted the conclusions made in the report of the centre regarding the mother’s lack of parental capacity to provide a safe and appropriate level of parenting.
However the mother had then requested an independent assessment as to what services would be required to enable her to parent to the maximum of her ability. The judge therefore asked in his case stated if he could direct the CFA to ascertain the cost of such an assessment, direct them to carry it out and subsequently provide the mother with the services identified.
The District judge noted that it was the CFA’s position that the report obtained from the psychologist at the request of the court had been carried out with the purpose of identifying what supports, if any, would allow the mother to parent on a full or part time basis. Therefore, it was their contention that the High Court judge would be unable to answer the questions in the case stated or that they should be answered in the negative. Counsel for the mother requested they be answered in the affirmative.
With regards to the case stated, it was the contention of the applicant (the CFA) that “a necessary prerequisite to the stating of the consultative case is that the District Judge must hear evidence and make findings of fact based on that evidence. Those findings must be relevant to the point of law on which clarification is sought and should be clearly outlined and sufficiently identified in the case stated, to enable this Court to understand how, or whether, the question posed can be said to arise. These principles reflect the jurisprudence concerning case stated procedures and it is submitted that it is a procedure that should not be used to address questions which are general, hypothetical or moot.” (10)
In summary, a case stated poses questions appropriate to elucidate the point of law arising, Those questions must include findings of fact relevant to such points of law, in light of all the relevant evidence heard regarding the point of law arising.
The High Court judge pointed out that the CFA had argued that the case stated “did not identify any factual basis upon which the welfare of the child is affected for the purposes of satisfying the conditions precedent to s. 47.” It was contended that the questions were framed not on the welfare of the child but on the rights of the mother and that it was the rights of the child that were engaged in respect of all applications and procedure before the courts in respect of child welfare issues.
Any order to be made therefore had to relate to the child’s welfare.
The CFA had submitted that the District judge did not establish any facts in relation to the child’s welfare and that the closest finding of fact made by the judge (vii) did not meet the requirements of s. 52 of the Act of 1961; “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.” (vii)
Turning to the mother’s case, he said it was the respondent’s case that Article 42A strengthened and enhanced the right of the child to the society of both parents, that it was in the best interests of the child to be raised by his or her parents and that it was 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. There must be compelling reasons as to why this could not be achieved and that intervention by the State must be proportionate when there is a failure of parental duty.
It was the respondent’s submission that a child had a constitutional right to be reared by his/her parents and that the parents had a constitutional right to rear their child. “Such interference must only be where it is required to protect the best interests of the child…the Court must investigate and explore whether there are options available which protect the interests of the child but at the same time allow the child to remain in the care of the parent.
“A clear example of such an approach is where the provision of additional supports may allow a parent to look after the child in a more satisfactory way than had previously been the case, thereby striking the correct balance.” (25)
It was the respondent’s contention that the District judge was seeking assistance in the case stated in relation to the extent of his powers, rather than seeking a direction from the court as to what he should do, whether he was enabled to take a particular course of action under s. 47 of the 1991 Act.
Counsel for the respondent had submitted that the findings of fact of the District judge were more than adequate to justify the questions posed and that a relevant point of law at issue had been found. Counsel contended that the central issue in the full care order proceedings was whether the parenting offered would be good enough if support was provided and that parents with disabilities should not be measured against parents without such disabilities and that furthermore the powers of the court under s. 18 must be not only be appropriate but by virtue of the provisions of Article 42A, the actions must be proportionate.
In addition counsel for the respondent had contended that a court hearing an application under the 1991 Act was “obliged to consider whether a less radical intervention than the removal of a child from the care of his or her parent can provide an adequate degree of protection for the child…the examination, identification, and implementation of measures which will support the mother’s ability to parent are necessary to ensure that she does not suffer from such discrimination.” (35)
In his decision the High Court judge found that the central emphasis of the power exercised by the District court under the 1991 Act and amending legislation was that it be exercised in the best interests and welfare of the child.
On his reading of the case, he did not find that the District Court judge and expressly found, or stated that the it was in the best interest of the child concerned, that the question required to be answered.
Nor did the High Court judge find that the District Court judge had expressly found that the ascertainment of the cost of carrying out an appropriate assessment of the mother was in the best interests of the child.
Therefore the judge agreed with the applicant (the CFA) that the best interests of the child were “not referred to in the case stated save in the context of the generally stated presumption”. “I agree with the applicant that the case stated as so framed largely places the focus, in express terms, on the child’s mother, rather than the child,” the judge wrote.
He noted that during the hearing, counsel for the CFA had accepted that if the court believed it was in the best interests of the child to obtain such an assessment of the mother, the District judge would not be precluded from obtaining it under the express statutory provision contained in s. 27 of the 1991 Act.
However, for the High Court to answer a consultative case stated it was still necessary for there to be a finding of fact. A constitutional presumption could not justify the obtaining of such a report “otherwise it might be deemed necessary to so apply in every case. Rather, there must be some basis for believing that a report is necessary or would be beneficial to the functioning of the court or to the parties in the case before it”.
“Regrettably, and not without some hesitation of reluctance, I have come to the conclusion that it is impermissible for me to conclude that the presumptions to which I have referred should in some shape or fashion be construed as findings of fact in this case.” He added that consideration to the rights of the child had paramountcy in the determination of any issue under a s.18 application, or in the determination of any such issue in the context of the question as stated.
In conclusion the High Court judge decided: “Regrettably, I must conclude that in the absence of a finding or findings of fact that it is in the best interests of this child, on the evidence considered, that the questions arise and should be answered, I am unable to answer the questions raised by the learned District Judge.”