A young teenager was taken into wardship by a High Court judge in circumstances where he was due to travel out of the jurisdiction under a secure care order for the purposes of residential care in a specialised residential therapeutic centre in the UK.
In 2018 the High Court began to operate under statute rather than inherent jurisdiction, the Child Care Amendment Act 2011 had been commenced and it stipulated that special care orders must be applied for under Part IVa of the 1991 Act as amended. However, Part IVa did not provide for the making of long-term orders for detention in special care mental health therapeutic services outside of the jurisdiction, therefore the High Court judge made an order that A be placed in the mental health facility outside of the jurisdiction, in the UK, under the court’s protection. The order made by the High Court judge in Ireland regarding wardship would then be mirrored by the Court of Protection in London.
The court heard that the wardship application was being sought to bring the child under the protection of the court, and that he had been in a secure care unit for nearly a year to date due his extremely high risk behaviours. These included sexualised behaviour, violence, property damage, threats, verbal aggressions and disengagement from education. The treating clinical psychologist’s report set out a diagnosis of autism spectrum disorder, ADHD, dyspraxia and oppositional defiance disorder (ODD).
Counsel for the CFA told the court that despite many attempts to find a placement in Ireland to meet his needs the social work department had not met with success. This, notwithstanding the fact they had approached 15 private providers and sent out 19 referrals. The type of facility the teenager required was simply not within the jurisdiction.
It had been agreed by all parties [the CFA, the GAL, the mother] that the placement in the UK [which would provide integrated therapeutic provision alongside education] was an appropriate placement and his mother agreed that it was in his welfare and best interests. Counsel for the CFA described the residential centre as the best that could possibly be available and told the court that the amount of research that went into obtain a suitable facility was quite staggering.
The court heard that the father had “disappeared” and there was no known information of his whereabouts, nor had there been for some years. The mother however was extremely involved and her counsel told the court that she was concerned about the concept of wardship in respect of her continuing involvement, given her son’s young age. Due to these concerns the mother was asking to be appointed as the wardship committee. Counsel told the court that there was consent from the mother for wardship if she could be appointed as the committee, otherwise the application was not on consent.
Furthermore, her preference had been for a placement within the State but the reality was that there was no such facility, therefore although she was satisfied with the placement in the UK, having seen it, she had concerns as to how wardship would impact her status and rights.
“My approach is that parents are pivotal for improvement,” replied the judge, “and although not appointed as committee they will be consulted at every stage. There are difficulties appointing the mother as committee as it is proposed that [the child] will go to the UK and when the English court considers the application it is used to dealing with the general solicitor. This smooths the passage and the general solicitor also ensures that the voice of the child is independently communicated to the court which might not be seen to be the case if the mother was on the committee.”
This was not a reflection on the mother in any way or a dilution of her important role and her involvement. The judge said that he hoped this would provide her with some measure of comfort. The mother acknowledged that it did and gave her consent to the wardship application.
In the event that the child was brought back to Ireland the judge said he would then consider the substitution of the general solicitor by her.
Counsel for the guardian ad litem (GAL) told the court that the GAL was in support of the placement, which he believed was exceptional. The only concern was the logistics of consent from the UK in relation to the Central Authorities and lack of indication as to when consent would be forthcoming under their application through the Hague Convention.
“I suspect they may be at sixes and sevens with Brexit,” said the judge.
“We’re concerned about the length of time it is taking to organise this,” added counsel for the GAL. “The position is that there is currently a secure care order in place by order of Judge Faherty [in the High Court]. This is the last week of term and it may well be that the secure care order will lapse.”
“I propose that if the order lapses then the wardship will take over and liberty to apply will be given so that when the consent comes from the UK Central Authority it can be dealt with, with speed,” decided the judge.
Counsel for the CFA informed the court that the UK placement was already being paid for so once the consent was given the teenager from the central authority he could be moved. He also went on to explain that the EU Commission had published a letter regarding Brexit and how to deal with the transition of individuals out-of-state to the UK. Any order the High Court judge would make regarding wardship, the Court of Protection in London would mirror, normally those requests were responded to quickly.
The judge granted the application to take the child into wardship and under the protection of the courts. He said that the mother would continue to play a pivotal role in his welfare and would be involved at every opportunity in decisions concerning his well-being. He reiterated again that it was much better from his point of view that a general solicitor be appointed to the committee so the furnishing of the child’s views could be brought through an independent voice to the UK court.
The judge told the parties that the order made in wardship would take over on expiry of the special care order. He authorised the child’s continued detention in the secure care unit where the authorities were to take all steps necessary and act in the child’s best interests and welfare, providing him with the treatment he needed. Once consent from the UK authorities was forthcoming the UK mirror order would then permit the child’s move to the UK residential therapeutic facility. In the meantime, the CFA would continue to fund the costs of the special care placement in Ireland.
The court said that the general solicitor would continue the retention of the GAL and he hoped that the GAL’s presence would provide some comfort to the child and his mother. He granted the GAL’s costs and counsel for the GAL’s costs to date as the GAL would now be represented by the general solicitor. A representative from the solicitor’s office for the GAL requested a go-between between the GAL’s usual counsel and the general solicitor.
