Quotes in italics are from the judgment of the judicial review.
In March 2019 the CFA sought, via judicial review, an order of certiorari, the quashing of an order and a direction that had been made in December 2018 by a District Court judge under section 47 of the Child Care Act 1991. The judge had given a direction that two children in care under interim care orders should spend part of the week with their older adult sister, and part with non-relative foster-carers. The CFA had sought to have the children solely in the care of the foster carers.
The issue for determination was whether the District judge had the power under the provisions of section 47 to have made the order she made, placing two children in the care of their older, adult sister at certain times of the week while at the other times they would remain in non-relative foster care.
The CFA argued that under the Child Care Act 1991, as amended, and the Regulations attached to it, it was for the CFA to decide on the type of care a child should receive once that child came into its care. This was part of the day-to-day responsibility of the CFA, and did not fall within the jurisdiction of the District Court. If a matter or concern arose relating to the care of a child, the power of the District Court could be invoked, but the court could not substitute a direction that a child receive care from a person who had not been assessed and approved by the CFA for the decision of the CFA on the appropriate care.
Counsel for the children’s sister pointed out that the children had lived with her for some time with the approval of the CFA. The mother then withdrew her consent to this arrangement and the CFA moved to take the children into care. The court was being asked to accept that the children remain for some of the week with their sister in order to remain in the same school, as the proposed foster carers lived in another county. The case therefore was fundamentally about welfare, this was a welfare issue. The children’s education was very much part of their welfare.
The social worker had decided not to go ahead with a foster care assessment for the adult sister as they thought she would not pass due to her young age and lack of parenting experience. In making the order under Section 47 of the Child Care Act the judge directed that the sister be assessed and supported as a foster carer.
Counsel for the sister drew the court’s attention to a number of cases dealing with the jurisdiction of the District Court under section 47 of the Act. A High Court ruling upheld by the Supreme Court found that the court had a supervisory power over the decisions of the CFA when it related to a child’s welfare. A number of other cases had upheld the decision of the District Court to give directions on matters such as orthodontic treatment and sending a child abroad to live with relatives.
The children’s mother supported the position taken by their older sister, arguing that it was necessary for the children’s welfare and cultural identity.
The GAL agreed that the District judge had the jurisdiction to make the order she made, but disagreed that she should have exercised her discretion as she did.
The High Court judge took the cases referred to as the starting point for his analysis and went on to make the decision that “the District Court judge had and has the power to make the order which she made under s. 47. The manner in which she exercised or purported to exercise that power is not the subject of the challenge, therefore, I must refuse the application.”
Section 47 of the Child Care Act 1991 provides that 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 thinks proper and may vary or discharge any such direction or order.”
The arguments of the CFA
The CFA argued that the judge had “trespassed on the powers, obligations and responsibilities conferred on them under and by virtue of the provisions of the Act of 1991, particularly sections 36, 39 and 41” and that furthermore the foster placement she proposed was unapproved within the meaning of the regulations (the 1995 Regulations).
After the judicial review hearing, the High Court judge determined that the District Court judge had and has the power to make the order which she had made under section 47 and therefore refused the application.
The Hearing: The CFA case
Counsel for the CFA submitted to the court that the District Court judge had exceeded her jurisdiction under s.47 of the Child Care Act 1991 (CCA 91) by placing two children under interim care orders in the care of their older sister at certain times during the week so they would be closer to school. The making of the interim care orders was not under dispute.
Counsel argued that it was the CFA who had the statutory responsibility under s.36 of the 1991 Act to determine the type of care to be provided and that therefore, in light of s.36 the District Court judge did not have the power to make such an order under s.47.
S.36 of the 1991 Act provides that:
36 (1) Where a child is in the care of a health board, the health board shall provide such care for him, subject to its control and supervision, in such of the following ways as it considers to be in his best interests –
- By placing him with a foster parents, or
- By placing him in residential care (whether in a children’s residential centre registered under Part VIII, in a residential home maintained by a health board or in a school or other suitable place of residence), or
- In the case of a child who may be eligible for adoption under the Adoption Acts, 1952-1988, by placing him with a suitable person with a view to his adoption, or
- By making such other suitable arrangements (which may include placing the child with a relative) as the health board thinks proper.
Counsel for the CFA told the court that it was very clear from s.36 of the Act that the responsibility had been given by the Oireachtas to the CFA to determine the type of care to be provided and this care was subject to the CFA’s control and supervision. Counsel said that the judge was attempting to use s.36 1(d) in her s.47 order, however it had been the intention of the CFA to use a non-relative foster placement. The judge had made her order under s. 47 and did not appear to take into account s. 36 and the other sections that flow from it, e.g., 39 and 41. It was very clear in the regulations that the CFA should fix the conditions under which the children would be placed by the CFA. Section 41 did not apply unless section 36 applied, “therefore everything was set at nought, it’s a combined package,” said counsel for the CFA.
The type of care which may be provided pursuant to s.36 was governed by regulation, said counsel for the CFA, provided for and made under ss. 39 and 41 of the 1991 Act, in particular the Child Care Regulations 1995 ((S.I. No 261/1995) Placement of Children with Relatives). Furthermore, these 1995 Regulations were used in conjunction with the national foster care standards and internal policies of the CFA. “It is very precise in what is required,” said counsel, “and the CFA is responsible for ensuring they are followed. On occasions there is severe criticism of the CFA when those Regulations aren’t followed in as exact a manner as they should be.
“They [the children] must go into a placement where they are receiving adequate care and protection,” continued counsel for the CFA. “The judge wasn’t in a position to make a determination of what was being followed or required, the children were placed in an unassessed, unapproved placement which is completely contrary to the intentions and spirit of the Act.
“Once the child comes into care, the type of care is a matter for the CFA under s.36 and s.41 of the Act and the 1995 Regulations and that is the distinct function and role of the CFA.”
Counsel also argued that s.41 of the 1991 Act did not apply unless s.36 applied, because s.41 flowed from s.36.
She also told the court that the assessment and approval of foster placements came under “day to day decisions” in relation to children and as such should be made by the CFA, regulated by s.36 of the 1991 Act. She said that the District Court should only interfere if circumstances adversely affected the children and in this particular case there was not enough information available to the court to make a decision under s.47.
At this point in the hearing, the judge asked counsel for the CFA if the District Court had no jurisdiction to deal with the type of care given to the child. Counsel for the CFA replied that she would not go as far as to say that.
“What if the District Court disagreed with the CFA as to the type of care?” asked the judge.
“Then it needs to be brought to hearing,” replied counsel for the CFA.
“Is this really a question of vires [ultra vires – beyond the power]?” asked the judge, “is it a question of evidence or absence of evidence that brought the judge to use that section as a conclusion?”
Counsel for the CFA said that it was not a matter for the court to go into evidence on the type of placement, but if a placement were to break down then the matter would come back in under a s. 47, but that was a matter of concern, not a day to day decision.
In summary, counsel for the CFA said that the District Court judge had acted in excess of her jurisdiction and if this decision was carried forward then there could be two parallel systems of foster placement in the state. One where no assessment, no approval, and no subscription to the Regulations was necessary and one where it was, it would all be set at nought if a court could decide under s.47 that a child can be placed in such a location. This order was in excess of jurisdiction when this authority was specifically contained under ss.36 [Accommodation and maintenance of children in care], 39 [Regulations as to placement in foster care] and 41 [Regulations as to placement with relatives] of the 1991 Act, counsel concluded.
Section 39 of the Child Care Act 1991: Regulations as to foster care:
39 (1) The Minister shall make regulations in relation to the placing of children in foster care by health boards under section 36 and for securing generally the welfare of such children.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) fix the conditions under which children may be placed in foster care;
(b) prescribe the form of contract to be entered into by a health board with foster parents;
(c) provide for the supervision and visiting by a health board of children in foster care.
Section 41 of the Child Care Act 1991: Regulations as to placement with relatives:
41 (1) The Minister shall make regulations in relation to the making of arrangements by health boards under section 36 (1) (d) for the care of children and for securing generally the welfare of such children.
(2) Without prejudice to the generality of subsection (1), regulations under this section may—
(a) fix the conditions under which children may be placed by health boards with relatives;
(b) prescribe the form of contract to be entered into by a health board with relatives.
Therefore, the placement was considered unapproved within the meaning of the regulations, said counsel for the CFA, s. 47 did not confer on the court the power to decide on the accommodation and maintenance of children in care.
A restriction on the use of s. 47 was through s. 36 providing for the determination as to the accommodation and maintenance of children in care. Counsel stated that the regulation of placements and the assessment of them was very important in light of the expertise that went into it. Therefore the decision in terms of a very specific function of which care type was appropriate for the child in question was best made by the CFA and the District Court judge had acted in excess of her jurisdiction. “The scope of her power to make directions under s. 47 was not unlimited and must be interpreted in the context of the general framework of the Act and consistent with the Constitution,” the judgment quoted counsel as saying.
In relation to welfare, counsel for the CFA said that s. 3 cited the function of the CFA to promote the welfare of children who were not receiving adequate care and protection which was why the judicial review had been brought. Welfare was all encompassing. The placing of a child in foster care was a day to day decision once a child came into care, only if that placement broke down could the District Court then become involved.
The sister’s case
Counsel for the second named respondent [the children’s older sister and with whom the children were placed with during the week] told the court that “the case being made seems to be good fences make good neighbours, s. 36 is given to the CFA, s. 47 is given to the District Court and if everyone stays in their own garden all the better. However, there is quite a long line of jurisprudence about s. 47.
“Section 36 places obligations on the CFA under the adopted regulations of section 41 (regulations as to the placement with relatives).
“[Section] 47 places the District Court in a supervisory role as to children being placed in care, the trigger is that it is a question affecting the welfare of the child, that is the criteria that the District Court has to have regard to, then the power to make directions [comes into play].
“The case the CFA is attempting to make today is essentially that two children were living with their mother and her sister, by agreement of the CFA the sister took over sole care in September last year, then the mother indicated she would withdraw consent, they remained with their sister from September to December, then there was a three day hearing and the children were taken into care under interim care orders. The court was being asked to accept that the children remain for some of the week with their sister in order to remain in the same school. School is a welfare question, it’s not a day to day question.”
Counsel for the children’s sister said that on CFA pleadings the point being raised was that the District Court judge did not have the power to make a decision in respect of placement under s. 47. The barrister then made the observation that the judge, who had been appointed to the District Court in 2012, had spent most of the time since then in child care cases and was a very experienced child care judge. She had heard the case on detailed evidence and subsequently made a decision based on that evidence on welfare.
The case therefore was fundamentally about welfare, this was a welfare issue. It was an uncontested fact that in September 2018 an agreement had been reached between the family and the CFA that the children would move from their mother and reside separately, therefore there was a period of time before going to court in early December that the children resided with their [adult] sister full time.
During the interim care order hearing the court heard from eight witnesses included the Peter McVerry Trust, the allocated social worker and a teacher from the children’s school.
The social worker had decided not to go ahead with a foster care assessment for the adult sister as they thought she would not pass. The social worker had referred to factors of concern from her social work report such as her young age, the lack of her own parenting experience, her ability to manage relationships with the extended family, ensuring the children’s safety and her own safety and managing day to day tasks.
By placing the children with their adult sister, the children could remain in the school they already attended as the foster carers lived in a different county. In making the order under s. 47 the District Court judge directed that their adult sister be assessed and supported as a foster carer. However, in January she had been contacted by the CFA and told that she would not be assessed because of the judicial review proceedings. Even so, their sister had applied for custody of her sisters since the making of the s. 47 order by the District Court judge.
Counsel for the children’s sister told the court that the CFA had very considerable responsibility for children who were under full care orders (s. 18) but that there was no equivalent provision under s. 17 (interim care orders). So although section 36 of the CCA set out a structured decision making process there was nothing in either section 47 or 36 that would prevent the District Court in having a supervisory jurisdiction in matters, such as the suitability of a relative carer.
The case that was being pleaded in the judicial review was ultra vires, counsel submitted if that was the case then no District Court judge could ever make an order of that sort. In the case law cited by counsel for the CFA, EHB v. McDonnell  I.R. 174, it was argued that once a full care order was in place then the District Court had no further power to make directions, however under an interim care order (s. 17) it was open to the judge to make orders regarding welfare. That argument was entirely rejected.
Section 47 was intended to give overall control of children in care to the District Court, said counsel for the children’s sister. The key authority in this was WHB v. K.M., where the cousin of a child had indicated the desire to care for the child. The questions for consideration were whether it was open to the then Western Health Board [now the CFA] to place the child outside the state under section 36, as there was no wording in the section itself in relation to the placing of children outside of the state.
The court went on to consider whether it was within the power of the court to do it and the court found it was, under the control and supervision of the CFA.
In the High Court Finnegan J, referring to s. 47 stated at p. 734:
“…this section is couched in the widest possible terms and I can find nothing in the Act of 1991 insofar as the same deals with the powers, functions and duties of the District Court to suggest that a restrictive interpretation of s. 47 is appropriate. Unlike s. 36 there is no qualification requiring control and supervision in s. 47. It seems to me therefore that s. 47 empowers the District Court to do whatever it deems appropriate to achieve the policy of the Act of 1991 as a whole and the objective set out in s. 24 of the Act of 1991. Accordingly, I find that the District Court can lawfully direct the placement of a child with relatives or foster parents outside the State pursuant to the provisions of s. 47 of the Act of 1991.”
The Supreme Court went on to uphold this decision, while accepting that when construing the provisions of the Act as a whole, the court should approach it in a purposive manner.
Counsel for the children’s sister, summing up his argument, said: “The court’s power is under s. 47, it is supervisory and it relates to welfare, the jurisdiction of the District Court arises whenever the issue of welfare is the issue.”
“Is it your case,” asked the judge, “that the District Court enjoy a parallel jurisdiction to the CFA as to the type of care and type of place in which the child is to be placed?”
“It is supervisory.”
“Supervisory, effectively the CFA takes the decision, the type of place, in accordance with the specific provisions that govern the exercise of those powers by the CFA, we look at 47 and the District Court has a wide supervisory role, [which is a form of] supervision on the applicant’s view usurping the express power given to the CFA under the Act,” summarised the judge.
“Why have s. 36 in the Act at all if the District Court can do whatever it wishes?” asked the judge.
“I don’t think the District Court can do whatever it wishes judge,” replied counsel for the children’s sister, “the District Court has to make decisions on evidence, in this case, the court had very detailed and substantive evidence. It’s not the appropriate approach to say that s. 36 is the CFA’s box and 47 is the court’s box. But if on evidence the District Court disagrees, it is entitled to make an order on the evidence.”
The judge replied: “On the applicant’s case it is a vires point, as you would see it, it is a rationality point, the ability to challenge the decision of the District Court, my understanding of the applicant’s case, although there may be a bit of a softening, that although it may be a case on vires, the District Court did not have the jurisdiction, but you’re saying it did but it could be challenged on the grounds of rationality?”
“Yes, judge but not on the terms of placement,” answered counsel for the children’s sister. He then went on to discuss a case in which foster carers brought an application to the District Court seeking the direction of orthodontic treatment of a child in their care to be paid for by the CFA. Legal submissions were made to the judge and she said she did not have the power to make a direction to the CFA to pay for the treatment.
In a judicial review of that case, VQ vs. Horgan and the Child and Family Agency  IEHC 631, Judge Baker found the Judge Horgan had unlawfully restricted her own power, notwithstanding that the expenditure of resources was involved as she would be directing the CFA to fund the treatment. Judge Baker found that Section 47 [gave] the power to make all decisions subject to the welfare of the child, not just on day to day matters, subject to the proviso that the court ought not interfere unless matters arose which require consideration of the welfare or interests of the child.
Counsel for the children’s sister told the court that it was clear that placement of the children with their sister was a welfare issue, furthermore an interim care order was an order that took the children into care and that was the most significant order of their life, especially if they were to spend the rest of their childhood in care.
“The District Court doesn’t have any power at all unless there is a welfare issue, once the welfare issue arises the District Court has extra broad powers as to what is in the best interests of the child. If providing braces to a child is a welfare issue, then deciding what school a child should stay in and living with her sister is too, the question if her sister is a suitable carer is a welfare issue,” said counsel for the children’s sister. The judge had made a very short order under s. 47 and the CFA had not chosen to appeal the order or go back to the judge and say the sister was not doing a good job, added counsel.
Furthermore, the judge had recommended that further enquiries were required, the court was not bound by section 36 or the 1995 Regulations, said counsel for the children’s sister. However, the CFA was bound by the Regulations on that section and to bring all the assessments with them to inform the court on their decision. “The court would be slow to ignore a report produced under section 36.” There was no assessment report because no assessment had been carried out.
However certain emergency checks could be carried out rather than a full assessment.
Determining what was in the best interests of the child was for the District Court to decide and carving out another court to ensure 42a of the Constitution was being upheld, rather than the District Court was inviting the court into an unconstitutional interpretation of 42a.
In relation to Constitutional rights question in the context of welfare, as asked by the judge, counsel cited the case of McDonnell where it was held that the function of the courts was to ensure that the Constitutional guarantees given to an individual are upheld where Judge McCracken stated at page 183:
“That where the welfare of a citizen and in particular, of a child who was in need was concerned, there would have to be a very clear delegation of powers if that obligation of ensuring that the constitutional guarantees given to the citizen were to be imposed on somebody other than the courts.”
Counsel for the children’s sister then pointed out that if “the District Court can direct that a child in its care can have an abortion, I think it’s pretty clear that a District Court can direct where a child in its care should live. A District Court judge is well equipped in dealing with child care cases.” A judicial review was not an appropriate response to the decision of Judge Quirke to make an order under section 47. A challenge to the findings of the District judge was a matter for appeal or an application to vary or discharge the order and the CFA had not applied for either, counsel added.
The mother’s case
Counsel for the first named respondent, the children’s mother told the court that her submissions were from the same position as counsel for the children’s sister. She said that the question to be determined, which was where the children were to be placed during the week, went to their welfare and their cultural identity, and supporting that very much went to supporting their welfare, which was why s. 47 had been triggered.
The barrister submitted that under section 47 the District Court could make all embracing and wide-ranging decisions on ultimate care where welfare was triggered. She also cited EHB vs. McDonnell in support of this position.
“Does it follow that the District Court has in fact wider powers than the CFA?” the judge asked.
“Yes,” replied counsel for the mother, “Nowhere in the Act does it say placing a child is within the sole discretion of the Agency. It is a duty of the CFA as an organ of the state to have responsibility for [placing children in care] and in compliance with the Constitution.”
“Does the District Court also have a parallel jurisdiction? Does it have all the powers of the CFA but it is not restricted by the powers of s. 36?”
Counsel for the mother told the judge that in relation to VQ vs. Horgan and the CFA, Judge Baker had found that the District Court had the power to make all decisions related to the care and welfare of a child. This meant where welfare interests arose, placement, education, cultural identity for example, matters that concerned their welfare and Judge Quirke had made the appropriate order to safeguard the welfare of the children in this case.
Notice parties’ submissions:
Counsel for the guardian ad litem (the GAL) told the court that vires (power) existed all the time, i.e., the power of s. 47 and the trigger was when a concern was brought to the attention of the court. How you exert power was a different issue to whether you have the power, he said.
What had happened therefore was lawful but it was the GAL’s position that the District Court should not have exercised its discretion in the making of the order.
The obligation to secure rights fell on the courts and not on any statutory body, said counsel. The EHB case made that very clear, but once a full care order was made the power of the District Court was spent. The function of the courts was to protect constitutional rights and nobody could take away that power, there was no case where this had happened.
“In the context of Article 42a, the constitutional obligation becomes much stronger,” submitted counsel for the GAL. “There is a danger that in fact now it would be illegal and unconstitutional given the centrality of best interest” as the courts must now have due regard for the best interests of the child as a paramount consideration in child welfare cases.
In EHB vs. McDonnell, Judge McCracken accepted that: “s. 47 is an all embracing and wide-ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court.” S. 47 did not have any constraints or limitations on it while s. 36 gave power to the health boards to carry out functions but did have constraints.
Counsel for the GAL submitted that as set out in the approach of the Supreme Court in McDonnell it is ultimately up to the court and not the applicant to enforce the rights of children in care under section 47 of the Act and ultimately the function of the court to vindicate the constitutional rights of the child.
However, if a court is authorising something which is otherwise prohibited under the Act then it should proceed with care (the placing of a child abroad is not permitted under s. 36 but it is under s. 47, the issue in McDonnell).
The ultimate determining matter was s. 24 of the Child Care Act which says that the best interests of the child must be the first and paramount consideration:
“In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—
(a) regard the welfare of the child as the first and paramount consideration.”
Counsel went on to say that in a judicial review it was his understanding that a court was entitled to intervene if it was clear there was a failure to have regard to relevant considerations or a failure to take into account irrelevant considerations, but he did not think the court was entitled if the judge had taken these into account, there was an agreed note of what had happened in the case.
He also submitted that the 1991 Act had been amended on seven occasions since that date and no constraints on the powers of the courts under s. 47 had been included in the amendments. It was the GAL’s position that the order could be made under s. 47 to place the children with their sister but in her view it would be better if it had not been made. That being said it was an interlocutory short-term order which did not merit a judicial review.
In summary, the judge told the parties that it was the applicant’s case that in terms of the initial placement that the District Court did not have the power under s. 47 to make the order regarding initial placement of the child in the context of the exercises of the power in that specific and limited context and no other context.
Counsel for the GAL had taken a slightly different view on behalf of his client that says yes she has the power to use s. 47 in the context of the initial placement but that is not a power that can be exercised without a good degree of care and also without regard to the other aspect of the Act which must be considered by the District Court judge. “This goes back to the point that I said yesterday, is it a vires case or is it that she exceeded her jurisdiction by not taking relevant things into consideration?”
Counsel for the GAL then told the court that vires existed all the time, i.e., the power of s. 47, and the trigger was when a concern was brought to the attention of the court but if the concern was brought at the time the placement is being discussed the jurisdiction must come then. This was born out in Baker vs. Horgan and VQat paragraph 39 where Judge Baker stated that the decision of the court may be required in matters where there is disagreement of a particular course of action in the best interests of the child.
The issue for determination was whether the District Judge had the power under the provisions of s. 47 of the Act of 1991 to make an order in relation to the initial placement of the children or whether by directing that the children be placed at certain times in the care of their older sister, the District Court judge had “impermissibly sought to exercise a function reserved to the applicant under statute and thereby trespassed on the powers, obligations and responsibilities conferred on the applicant under and by virtue of the provisions of the Act of 1991, particularly ss. 36, 39 and 41 and the relevant regulations made thereunder.”
In the judicial review hearing submissions were made on the manner in which the courts had previously interpreted the powers conferred by s. 47. Case law cited and decisions therein were of Judge McCracken in McDonnell, Judge Baker in V.Q. and the decision of the Supreme Court in Western Health Board v. K.M.
The judge took these cases as the starting point for his analysis and went on to make the decision that “the District Court judge had and has the power to make the order which she made under s. 47. The manner in which she exercised or purported to exercise that power is not the subject of the challenge, therefore, I must refuse the application.”