A High Court judicial review quashed a District Court refusal to direct the Child and Family Agency to pay for orthodontic treatment for a child in care. The court found that the judge had erred in declining to accept jurisdiction to determine the question under s.47 of the Child Care Act 1991 and an order of certiorari was made quashing the refusal to direct that the treatment be funded.
The District Court hearing in 2015
At the outset, as the ruling of the District Court judge had been short and ex tempore, the parties agreed that the report on the case by the Child Care Law Reporting Project (a body recognised by S 29 of the Act, as amended) accurately reflected what was said. The judgment then quoted from the report, published as number 27 in Vol 1 2015 of the CCLRP reports on its website, in outlining the facts of the case and the ruling.
A s.47 application had been brought before the District Court in early 2015 asking the court to look at the individual needs of an individual child, Child B, who was a child in care. B’s foster mother gave evidence that he had become distressed and self-conscious about his teeth sticking out and was being “slagged” at school because of them.
The foster parents’ solicitor had told the District Court that he was not inviting the court to make an order that would have a binding effect on every child regardless of the circumstances. He contended that the CFA’s decision not to fund Child B’s orthodontic treatment was a budgetary decision and not a welfare decision. He asked the court to make a best interests decision. He told the court that the foster parents cared for B and two of his siblings, all of whom had special needs, however under law the CFA was the parent and should therefore pay for the treatment.
The child’s foster parents were advised that B would have to be placed on a HSE waiting list for orthodontic treatment. Subsequently the foster parents had B privately assessed by an orthodontist and were told that early intervention would cost less.
The foster mother gave evidence that she had provided the quote of €4,750 for treatment to the social work department so they could put it in for funding and they were not told to stop because it would have to be paid by them. The foster parents did not feel their contract as foster parents related to paying for orthodontic treatment because it constituted an extraordinary expense and was not a day-to-day expense. At the time of the District Court hearing they had paid €1,750 of the predicted cost, in instalments.
During that hearing the principal dentist of the HSE told the court that Child B had not met the criteria under the assessment standards of the Index of Orthodontic Treatment Need (IOTN). They did not have a concern that in the long term he would need jaw surgery (as indicated by the private assessment in January 2014) who contended B met the 4F category, the trigger for intervention.
For an exception to be made with regard to children’s suffering from severe emotional difficulties as a result of their teeth, the principal dentist said that documentation would need to be furnished. In this case they had not received any such information. No exceptional submissions or case had been made by the CFA.
The social worker had told the court that the department’s view was that orthodontic treatment was not seen as an exceptional payment and should be paid for by the child’s foster parents. She was completely satisfied that the foster mother was aware that this expense should be funded from the fostering allowance before B commenced his treatment. It was the department’s position that orthodontic work was in his best interests but that the fostering allowance was sufficient to pay for it.
The foster parents’ solicitor contended that orthodontic treatment could hardly be described as a day-to-day cost and that the purpose and use of the foster care allowance should be used in respect of and for the benefit of the foster child to meet their day-to-day costs. Orthodontic treatment was not on this list of such day-to-day costs stipulated under the “purpose and use of the allowance” in the guidelines for foster parents from March 2013.
In submissions, the foster parents’ solicitor told the court that he was seeking a Section 47 direction in relation to the provision of dental treatment services for the benefit and best interests of the minor which would not establish a binding precedent. He said that the court had the discretion to make the directions he was seeking and that it was reasonable for the parents not to pay for it from their fostering allowance. Furthermore, the foster parents had not received a written decision from the social work department or the basis upon which the decision was made.
The solicitor for the CFA submitted that it was not within the District Court’s jurisdiction to make the sought direction for funding. The solicitor said she was relying on the separation of powers in that regard and that the expending of public money was a matter for the Oireachtas or particular state bodies and not the court. Payments to foster parents were a matter exclusively for the CFA. Furthermore the CFA had no discretion to provide dental services for the benefit of B and it was a matter for the HSE. The CFA had done what it was statutorily obliged to do.
The solicitor for the CFA also submitted that B’s needs were currently being met and the mother had already said she would continue to pay for the treatment in the event funding was not directed by the court.
The judge did not make the direction for funding, stating that it was not open to the court. Within her decision she said: “The obligation of the executive is to determine how funding is spent. I accept they must balance the obligation to fund all children under the services, under their formula. [B] is in receipt of the treatment and it is not open to the court to direct the CFA to fund that treatment privately. The process we have gone through is outside the merit of this court.”
The judicial review in November 2016
A year and a half later a judicial review was held regarding the decision of the District Court judge declining to grant an order that the notice party (the CFA) should fund private orthodontic treatment in respect of the foster child of the applicant and her husband.
In the judicial review, the applicant (the foster mother) sought declaratory relief that the respondent (the judge) erred in declining to accept jurisdiction to determine the question under s.47 of the Child Care Act 1991 and an order of certiorari quashing her refusal to direct that the treatment be funded.
The grounds on which the relief was sought were that the judge misdirected herself in law, unlawfully declined jurisdiction and took into account irrelevant considerations.
At the time of the judicial review, the cost of the orthodontic treatment had been privately funded by Child B’s foster parents who had paid the private specialist in instalments.
Ms Justice Baker noted in the factual background of her judgment that the applicant had argued in the District Court that the payments she and her husband received in respect of the foster placement did not stipulate or envisage that the foster parents meet exceptional payments such as the cost of orthodontic care. However the CFA had opposed this argument contending that the standard foster allowance was considered sufficient to cover the expense of the treatment, being regarded by it as a “usual need and expense” experienced by many families with growing children.
The judge also noted in the factual background of her judicial review that evidence was heard in the District Court from the applicant, from a HSE dental surgeon and the social work team leader. Following this evidence the judge had refused the application seeking the direction of the District Court pursuant to s.47 of the Act in relation to the provision of dental treatment for the benefit of the child.
The basis of the decision in the District Court was then reviewed by Mr Justice Baker, within the context of the argument that the judge had had before her. The primary argument by the solicitor for the CFA was that the application was not within the jurisdiction of the court, as it sought a direction to the CFA to expend monies and that such a direction could only be made by the Oireachtas or by a State body and not by a court.
Ms Justice Baker said: “[The] submission presented by the CFA on the application related to the argument from the separation of powers. Reliance was placed in particular on the decision of the Supreme Court in T.D. & Ors. v. Minister for Education & Ors. , as establishing that the power under s.47 could not be used to direct the CFA and the State in the exercise of its policy, or the distribution of resources, as this would breach the constitutionally recognised competence of the courts. It was also argued that, as the Oireachtas has formulated a policy on the provision of State funded orthodontic services, the courts ought not interfere with this policy by directing payment for private treatment in respect of persons whose needs do not satisfy the criteria of that scheme.”
She found that the parties did not agree as to the basis of the District Court judgment. The respondent argued that the District Court judge did not decline jurisdiction for reasons of the separation of powers but “rather because she took the view that the child’s needs were, and would continue to be, met by the foster parents and the application before her failed to establish that any welfare question was engaged in the circumstances.”
However the applicant’s evidence was that the District Court judge had “expressly relied on the reasoning of the Supreme Court in T.D. & Ors. v. Minister for Education & Ors. and refused jurisdiction in reliance on that decision, as she considered she had no power ‘to direct funding’.”
Ms Justice Baker found that the primary reason for the decision of the District Court judge was the argument from the separation of powers but that she had also made express reference to the question of welfare.
Section 47 of the Act provides as follows: “Where a child is in the care of the Child and Family Agency, 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 think proper and may vary or discharge any such direction or order.”
She noted that under a s.18 order a child is taken into the care of the State “and the legal effect of such an order is that the CFA, as an agent of the State, takes on many of the functions of guardian of the child, and has, during the currency of an order, the role of approving or consenting to medical treatment.” She further added that it is clear from the judgment of Mr Justice Finnegan in Western Health Board v. K.M.  “A care order pursuant to s.18 commits a child to the care of the health board and gives the health board the like control over the child as if it were his parent.”
She said that he had also pointed out that there was no qualification on the statutory power of a s.47 ruling, and the section empowered the District Court to make directions and to do whatever it deemed appropriate to achieve the policy of the Act as a whole.
The judicial review also had regard to the 31st Amendment to the Constitution where Article 42A mandates that “the best interests of the child shall be the paramount consideration” in all proceedings relating to its care and custody. “The District Court must now be considered to engage a statutory power and obligation to protect and vindicate those best interests,” she wrote.
She noted the limitations on that role, acknowledging that the District Court should not interfere in the day-to-day decisions made by a health board in relation to a child in its care (as found by McCracken J. in Eastern Health Board v. McDonnell). “The role of the court was rather to make determinations and give directions when matters brought to its attention could ‘reasonably be considered adversely to affect the welfare of the child.’”
Ms Justice Baker found that the role of the District Court “must be seen as inquisitorial, that the court has vested in it the power to initiate an inquiry of its own motions, or upon the application of any person. O’Malley J in HSE v. O.A.,  explained the role at para 63: ‘I accept that child care proceedings under the Child Care Act, 1991 may not be directly analogous to most other forms of litigation. It is certainly the case that the judge’s function is different, in that he or she must adopt a more inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations.’”
Welfare of child
In relation to s.47, Ms Justice Baker found that “the court must assess the welfare question, whether the treatment is one in the ordinary course of anticipated expenditure, whether the resources of the parents are sufficient to meet the costs, and whether there is a risk that the needs of the child may not be met if the treatment cannot reasonably be funded by the foster parents. The court has the power and the obligation to weigh these factors and made a determination in the individual case, and is the ultimate decision maker in regard to all such matters.”
She noted that a “distinction is to be drawn between a decision which directs policy in general, and the decision in an individual case the practical effect whereof is that the financial resources of the State are impacted.”
She found that District Court judge had incorrectly relied upon the judgment of the Supreme Court in T.D. & Ors. v. Minister for Education & Ors, in a number of respects including that “no question of policy was sought to be directed in the application to the District Court,” and that “the court had not been asked to predetermine whether the cost of orthodontic treatment be met for all children in care once the treatment was found to be in the interest of the child. Such a decision would not be within its jurisdiction.”
The applicant had given evidence in the District Court that she believed the CFA would fund the expenses of the orthodontic treatment for which she had, at the time of that hearing, to pay in instalments.
It was the contention of the solicitor for the CFA during that District Court hearing that a welfare question was therefore not engaged under s.47 because the needs of the child were being met due to the fact that foster parents had opted to fund the treatment themselves from their own resources.
She was not persuaded by the argument that no welfare question arose “on account of the fact that the foster parents were in fact meeting the expense themselves.” Furthermore this position had failed to take into account that the clinical evidence of the HSE orthodontist had been contested in court and that the applicant had given evidence that she believed the CFA would meet the expenses “and that she had been given assurances that this was so”.
In conclusion the High Court considered that it was “within the jurisdiction of the District Court to make findings of fact, as to the meaning of the agreement reached between the foster parents and the CFA, whether the young boy did need the orthodontic treatment, and whether the parents had agreed to fund the treatment out of their own resources in reliance on a representation that the money would be refunded. The questions engaged were questions specific to the concrete circumstances before the court, and whether it was reasonable to expect the treatment to be funded by the foster parents in all of the circumstances. No question of State policy or that of a State agency arose for consideration.”
The High Court found that the District Court judge had fallen into error arising from an incorrect emphasis on the separation of powers in the submissions made by the CFA as it “was anxious not to create a precedent or practice which might mean it would be called upon to fund orthodontic treatment for other children in the future.”
This was not a concern for the District Court. It was not part of the application under s.47, and the President of the District Court was competent in my view to give a direction on the matters raised before her without making any observations, rulings or findings, with regard to the funding of orthodontic treatment for children in care in general.”
She therefore found that the District Court judge did have the jurisdiction to make orders pursuant to s.47. She strongly urged the CFA to conduct a further review of the application as they had offered. She found that the applicant had been refused an additional allowance in respect of what was claimed to be extraordinary or exceptional expenses incurred on behalf of her foster child.
In her final remarks, Ms Justice Baker wrote that it was a matter of “some concern” that the costs of the District Court proceedings as well as those of the judicial review were far greater than those of the orthodontic treatment.
She made an order of certiorari quashing the decision of the respondent given in 2015.