High Court reserves WHB application to foster child abroad

The High Court has reserved judgment on a test case to determine whether a district court or a health board may legally place a child who is in care with relatives or foster parents living outside the State.

The outcome of Mr Justice Finnegan's decision on the application by the Western Health Board in relation to a four-year-old boy will have significant implications for all health boards dealing with children in care.

The WHB wants to send the boy to live with relatives outside the State in circumstances where, the board claims, the mother is incapable of looking after him. In the district court, the child's mother opposed the application, contending it was a breach of her constitutional rights. The district judge forwarded three questions to the High Court for determination.

The first two questions ask whether the WHB may lawfully place a child with relatives or foster parents outside the State under the provisions of Section 36 of the Child Care Act 1991, and whether the district court can lawfully direct the placement of a child with relatives or foster parents outside the State under Section 47 of the Act.

If the answer to both those questions was yes, the third question posed was whether the period for which the child was placed may be limited.

Mr Gerry Durcan SC, for the WHB, said yesterday the court was effectively being asked to decide whether a child may ever be placed outside the State. The case centred on construction of particular sections of the Act and was a pure matter of law. The court should adopt the interpretation of the act most likely to protect children.

He said Section 18.3 of the Act provided that where a care order was made regarding a child, a health board would have the same control over that child as would a parent and was required to do all things necessary to promote and protect the health and welfare of that child.

Section 36 of the Act provided the board should provide such care which it considered was in that child's best interests. Section 24 also required that consideration of the child's welfare was paramount.

Mr Durcan said the court could contemplate instances where a board could show it could exercise adequate control and supervision over a child sent outside the jurisdiction. This was a matter for proof.

He argued the Act did not provide that anything being done regarding a child may only be done here. He said the mother could continue to avail of the district court's supervisory powers regarding children, could register orders regarding the child under the Luxembourg Convention to ensure their enforcement or seek mirror orders in whatever jurisdiction the child was placed.

Opposing the application, Ms Mary O'Toole SC, for the child's mother, said the territory of an Act must exclude areas over which the Oireachtas had no jurisdiction. If the district court allowed the health board to place the child abroad, it was divesting itself of its jurisdiction under the Child Care Act and was not entitled to do so.

A health board could only place a child in a situation where it could continue to exercise control and supervision over that placement. It could not do so outside the jurisdiction. She did not accept the district court might look at the particular circumstances of a case to determine whether control could be exercised outside the jurisdiction.

The Luxembourg Convention was complex and difficult to construe and there was always an argument to be made it did not apply to particular cases.