Court role in children's care upheld

The Eastern Health Board has lost a High Court challenge to the entitlement of the District Court to retain or impose some form of control or conditions on children in the care of the board.

In separate judicial review proceedings, the board had challenged the entitlement of District Judge James Paul McDonnell to issue directions as to how the board should look after two children in its care. The parents of both children had supported the judge's directions.

In the case of the six-year-old, Judge McDonnell had criticised the board for "mismanagement" of the case and said it had breached a court order regarding access to the child. He also referred to considerable drift in the management of the case, caused by a lack of clear objectives.

Dealing with the nine-year-old, Judge McDonnell directed there should be no change in the foster parents or social worker assigned to the case by the EHB without leave of and notice to the court. He also made directions regarding access to the child by the estranged parents.

In his reserved judgment on both cases yesterday, Mr Justice McCracken said the issue was very simple, whether the district judge had acted within jurisdiction in giving the directions.

This could be reduced to the even more basic issue as to whether, under the Child Care Act 1991 (the Act), the District Court could retain or impose some form of control or conditions with regard to the care of a child which restricted the operation of the EHB after a childcare order had been made.

Mr Justice McCracken said Section 24 stipulated that in any proceedings regarding the care and protection of a child, the court should regard the child's welfare as the first and paramount consideration and also consider the child's wishes.

Section 47 of the Act states that, where a child is in the care of a health board, the District Court may give such directions and make such orders on any question affecting the welfare of the child as it thinks proper and may vary or discharge such direction or order.

The EHB had argued that, once a permanent care order is made, a child is then committed to the care of the board and the powers of the courts under the Act are spent. It also argued that stipulations that the board must prepare a care plan for such children emphasised the board's jurisdiction over the children, and claimed there could be serious problems if more than one body was responsible for the detailed and day-today welfare of a child in care.

The parents of the two children concerned argued that Sections 24 and 47 give the ultimate responsibility for a child to the court and also pointed to the constitutional rights of parents and children which, they said, were a matter for the courts.

Ruling against the EHB, Mr Justice McCracken said it was the function of the courts, and not of local authorities or health boards, to ensure that the constitutional guarantees given to an individual were upheld.

Sections 24 and 47 of the Act satisfied him that the district judge was entitled to give directions regarding the care of the two children in question and was also entitled to enforce those directions.

Section 24 clearly provided that the court should have regard to the welfare of the child as the first and paramount consideration.

He said Section 47 gave an extremely wide jurisdiction to the District Court and was not limited to cases where there were proceedings before the court, but rather to situations where the child was already in the care of a health board. That jurisdiction could be exercised by the court itself on the application of any person.

A farcical situation could arise were he to declare today that the District Court had no power to impose directions on the board and tomorrow the parents could apply to make exactly the same directions. In his view, Section 47 was intended to entrust to the District Court the ultimate care of a child who came within the Act.

Mr Justice McCracken said he was satisfied the district judge in the two cases had ample grounds upon which to intervene or impose conditions.