Introduction to wardship reports 2023 Vol 2

For the last number of years the Child Law Project has been reporting on wardship proceedings in the High Court concerning young people, many of whom are or have been in the care of the Child and Family Agency (CFA). Usually this has been the body seeking wardship for the young person. The reasons for this vary, but include the young person having highly complex needs and requiring detention and treatment on an ongoing basis, sometimes in another jurisdiction.

Taking a person into wardship requires a court finding that they are of “unsound mind” and lack capacity to make decisions for themselves. The court makes such a decision based on reports from medical specialists. Those subject to such proceedings can suffer from mental illness (but fall outside the definition of mental illness in the Mental Health Act), or cognitive disability. Being made a ward of court deprives a person of the right to make a wide range of decisions for themselves. This has been criticised as crude and overly paternalistic, and the Law Reform Commission recommended that the regime be replaced by a more nuanced system placing the rights of the person concerned at its centre. Such a regime should recognise that people could have capacity in certain areas, but not in others. Its report formed the basis for the Assisted Decision-Making (Capacity) Act, passed in 2015.

The Assisted Decision-Making (Capacity) Act 2015 (ADMCA) came into operation in April 2023. It replaces the adult wardship regime and establishes a new legal framework for supported decision-making. The legislation sets out a functional test for the assessment of capacity, meaning that a person’s ability to make a decision is assessed based on the decision that has to be made at a particular time. The test for capacity under the Act recognises that a person’s capacity can change over time, meaning they might need more or less support in the future.

Under the Act, all of those currently wards of court should leave wardship within the next three years. Their situation will then be reviewed and the supports they need in their decision-making assessed. In some cases, this will require the courts appointing a person to assist them.

The ADMCA does not apply to those between the age of 16 (when young people may make decisions concerning their health without parental permission) and 18 (the age of majority). This leaves those who have been made wards of court following a report on their capacity by a medical visitor in a wardship situation, awaiting the review of their wardship at or just before the age of 18.

The Act has no provision for the detention of those wards of court who are being detained for what is deemed by the court to be in their own interests. As the wardship regime came to an end in April 2023, the issue of how to deal with such people had to be examined by the High Court, and a number of young people fell into this category.

The High Court examined the case of one young woman who had been in the care of the CFA, was now a ward of court and continued to be in a residential unit under a number of restrictive orders, including one empowering the Gardaí to detain and return her if she absconded. The High Court considered where the power to detain now resided, given that the wardship regime had been ended, and decided that the power to detain a person now rested with the inherent jurisdiction of the High Court, and outlined the considerations that should apply. We report on this judgment here.

We also report on a number of other cases, where young people are detained or have their lives restricted as wards of court. These demonstrate the issues which will have to be considered by the High Court in the future if detentions are to be continued.

The High Court also considered the situation of four young people who had been made wards of court and sent to specialist units in the UK for the treatment of young people with complex needs, because no such facilities exist in Ireland. The judge in one of the cases expressed regret that there was no such unit in Ireland, and one of the young people, while accepting the need to be where she was, was very homesick.

The lack of appropriate psychiatric and psychological services, including in-patient care, for children and young people with complex needs, including psychological, disability and behaviour issues, has been highlighted by the Child Law Project in many of its volumes of reports.