Children in care may be placed abroad by District Court, not health board, judge rules

The Supreme Court has upheld a High Court decision that a child in the care of a health board may be placed with relatives or foster parents outside the State. The power to place such a child abroad lies with the District Court, not health boards.

Giving the Supreme Court's judgment dismissing a mother's appeal against the High Court decision, Ms Justice McGuinness remarked the questions raised in the case were not just of vital importance to the child in the case and his mother, but also had far-reaching implications for all health boards. While upholding the main aspects of the High Court decision, Ms Justice McGuinness said that court had erred in deciding that a health board which had obtained a care order might not approve the removal outside the State of any child under one year of age who was born outside marriage.

She was dealing with an appeal by a mother of a five-year-old boy against a proposal by the Western Health Board to place the child in the foster care of a relative of the mother in the UK. The child was taken into care a month after he was born because of the board's concern that the mother was unable to care for him due to her psychiatric condition. When the matter came before the District Court, the judge referred a number of questions to be determined by the High Court.

The High Court found Section 36 of the Child Care Act 1991 (CCA) did not empower a health board to place a child in care with relatives or foster parents outside the State. It ruled Section 47 of the CCA permitted the District Court to direct the placement of a child with relatives or foster parents outside the State and that the District Court could limit the period of that placement.

Yesterday, Ms Justice McGuinness said the CCA was a remedial social statute which should be construed as widely and as liberally as could fairly be done.

While the District Court could make the orders to place children outside the State, such orders should be made rarely and with considerable caution.

All factors relevant to the welfare of the child and the constitutional rights of all parties must form a crucial part of the consideration of the District Court when deciding about orders. She said it was for the court and not the health boards to protect and enforce the constitutional rights of children in care.