D -v- District Judge Haughton anor
Neutral citation (2011) IEHC 42.
High Court
Judgment was delivered on February 8th, 2010, by Mr Justice John Hedigan.
Judgment
A challenge by the grandparents of a child placed in foster care by the HSE to a District Court care order, placing the child in foster care with non-relatives, was rejected.
Background
The child at the centre of the proceedings was born in October 2007 to a young woman who had descended “into drug addiction, homelessness and crime”. The child was found to have heroin in his system at birth due to his mother’s ingestion of heroin during pregnancy. The hospital authorities notified the HSE and a meeting was organised on December 3rd to formulate a child-protection plan.
Efforts were made to support the mother, but to no avail, and her partner’s sister, T, agreed to look after the baby. Subsequently DNA tests revealed the partner was not the father of the child and the relationship broke up. The child remained with T and her partner D and the HSE decided to apply for a care order.
The grandparents indicated to the HSE their willingness to care for their grandson, but the HSE had reservations. These arose from the fact that the daughter had taken drugs in their house and had alleged (an allegation later withdrawn) that the grandmother had given the child methadone.
The grandparents made an application to the District Court for guardianship but this was refused on the basis that the child’s mother was still alive. Their application for access was also rejected.
The HSE obtained an interim care order and, on November 18th, it obtained a full care order for as long as the child remained a minor.
The judge was informed that the grandparents wished to care for the child, but the HSE had reservations about this. Their solicitor asked that they be admitted to court, but the district judge decided not to hear them.
The HSE informed the court that T and D were prepared to take care of the child. The grandparents initially had extensive access to him, but this was subsequently reduced as the childcare officials felt it was giving rise to confusion in the child as to whom his primary carers were. The grandfather outlined grave concerns he had about the welfare of the child in the custody of T and D.
The grandparents are in the process of being assessed as possible foster parents for the child.
Decision
Mr Justice Hedigan pointed out that the jurisdiction of the High Court in judicial review was very limited. Its broad principles were set out in Meadowes -v the Minister for Justice, Equality and Law Reform. It was not for the High Court to interpose its view even if it were different to that of the district judge. It was he and the Circuit Court on appeal who had jurisdiction in childcare matters.
“These courts have frequently stated that it is not for a High Court, save for exceptional reasons, to intervene as that would be to usurp the jurisdiction granted to the relevant tribunal,” he said.
The HSE had challenged the locus standi of the applicant, as he was neither the parent nor the guardian of the child. He argued that he was allowed to attend the District Court proceedings before the care order was granted.
The judge said this did not alter the fact that no order quashing the care order or any declaration of the court could transfer guardianship or custody to the applicant. Full parental rights were transferred to the HSE when the care order was made and the applicant had no legal right or interest to vindicate.
However, he wished to outline a view on the case the applicant had so carefully outlined. It was all but inevitable that in cases as fraught as these, personal relations between the applicant and the care workers involved – and the couple caring for the child – would come under great strain, leading to a breakdown of trust. In the interests of everyone, but especially the child, he hoped that every effort would be made to restore friendly and co-operative relations.
He considered that the childcare authorities had done their best in a desperate situation. Once the child was placed into the custody of T, that created its own dynamic and the child naturally formed a close attachment to her. The level of access afforded to the applicant and his wife was of extraordinary frequency and must have raised considerable difficulty. The decision to reduce it, while painful to the applicant, was justifiable in the circumstances.
He referred to fears the applicant had expressed about the welfare of the child, commenting that the childcare authorities had said they were satisfied the child was safe, well-cared for and happy.
However, he added that it was open to the applicant to make an application to the District Court under section 47 of the Childcare Act seeking an order relating to the welfare of the child, as it was open to any person to do so.
In relation to the application to quash the order, he said the order was good on its face and the only real challenge was that the applicant and his wife were not present. They had no right to be present as the case was in camera and they had been refused guardianship. The judge was well aware of the facts before him.
In relation to the placement with T and D, this lay within the power of the HSE. No investigation of the original placement would be appropriate at this stage, as it was the present situation of the child that concerned everyone. A lot of harsh things were said in the application and he urged all involved to step back from the state of conflict and work together. He added that it would not be conducive to the restoration of good relations to make an order for costs against the applicants.
The full judgment is on courts.ie.
The plaintiffs represented themselves and the court was represented by the Chief State Solicitor’s Office