The Department of Justice agreed to process an application for naturalisation for a non-national girl who had no nationality or passport. The girl’s parents had not co-operated with the social work department in their efforts to obtain a passport for the girl. The Department of Justice agreed to allow a social worker sign the application for naturalisation, acting as the de facto guardian of the child. The CFA would then apply for a passport for the child, to allow her travel to a international sporting competition.
A witness from the Department of Justice had given evidence in the case on behalf of the Irish Naturalisation and Immigration Service (INIS). The witness had set out the initial objections of INIS to allowing the social worker sign the application on behalf of the child. The witness said: “If the State was to naturalise the child, that would be in breach of Article 41 of the Constitution.” The judge replied that he could not believe “that was the view on record for the Attorney General.”
The solicitor for the CFA pointed out that the courts had decided that, when a Care Order is granted in respect of a child, the majority of powers in relation to that child are transferred to the health board and that the CFA has very wide powers when an order was made in respect of a child under section 18 of the Child Care Act, 1991.
She further said that section 47 of the Child Care Act, 1991 was “all embracing and wide.” Section 47 of the Child Care Act, 1991 states that “where a child is in the care of a health board, 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.”
Section 18(3) of the Child Care Act was relied upon which states that “where a Care Order is in force the health board shall – have the like control over the child as if it were his parent, and do what is reasonable (subject to the provisions of this Act) in all the circumstances of the case for the purposes of safeguarding or promoting the child’s health, development or welfare.”
The judge asked the witness from the Department of Justice, in relation to his assertion that to proceed with the application would be contrary to Article 41 of the Constitution, to outline exactly which rights he was alleging were “inalienable and imprescriptible” (the phrase used in Article 41 of the Constitution). The witness replied that the right to determine the nationality of a child belongs to the natural parents of a child, as the child’s primary guardians.
The judge observed that the parents were out of the child’s life, and that the child had last had contact with her parents in 2010. The judge said that legally the child is in care and following on from this, the parents do not have any rights. The judge said “there is no right which cannot be controlled by the court and which is inalienable/imprescriptible. That phrase is meaningless until the High Court gives it meaning.”
The CFA solicitor asked the witness from the Department of Justice what he thought would happen in a similar situation, if there were no parents? The witness replied that the CFA would be the primary guardian of the child. The judge said that such a statement showed that the witness did not understand the nature of an order under section 18 of the Child Care Act, 1991, and the role of the CFA, in situations where a Care Order has been made, is identical whether or not there are parents.