High Court challenge over judge's order on boy in care

The Eastern Health Board has challenged a District Court judge's direction as to how the board should treat a nine-year-old boy in its care.

The child's natural parents and the child - through legal representatives - are opposing the board's challenge and are supporting the judge's ruling that the boy should remain with his foster parents pending a further court order to ensure continuity of care.

The court was told all sides have agreed that the child should remain with the foster parents but the board argues that the decision is for it, and not the District Court, to make.

Judge James Paul McDonnell acted in excess of his jurisdiction and outside the terms of the Child Care Act 1991 in setting out certain requirements for the care of the child, the board claims.

In judicial review proceedings before Mr Justice McCracken, the board is seeking orders quashing the judge's directions. It also wants the matter remitted to the District Court for orders in conformity with the Child Care Act and an additional order prohibiting Judge McDonnell from making any further order regarding the child.

In separate but similar proceedings, the board is also seeking to quash orders made by the same judge for the care of another child, now five years old, who was first put in care when he was six weeks old. In his judgment in that case, Judge McDonnell expressed "grave concerns" about the "mismanagement" of the case by the EHB.

Opening the first set of proceedings yesterday, Ms Inge Clissman SC, for the board, said the nine-year-old boy in question was placed into care by order of Judge McDonnell in 1996 following lengthy court proceedings.

Judge McDonnell gave his reasons for that decision in March 1997 and that judgment set out directions regarding the child. The judge directed the EHB to prepare a care plan for the child and submit it to a named child psychologist, retained by the child's representative. The psychologist was to submit a report to the court on that plan.

Judge McDonnell also directed there should be no change in the child's foster parents or designated social worker without leave of the court. He further stipulated what access arrangements should be made for the child's mother and father to the child and directed that the child not be sent to any form of therapy without reference to the psychologist and the court.

The EHB had objected to those conditions and secured leave to challenge them by way of judicial review, Ms Clissman said.

She submitted the judge's directions were in excess of his powers and jurisdiction and ultra vires the Child Care Act 1991, in that the judge had effectively assumed a supervisory role regarding the child's care.

She said a District Court judge could not impose conditions on the care of a child where a full care order had been made. The power to apply for such a care order was only vested in the health boards and the EHB had secured a care order in this case. In those circumstances, the board was responsible for the care of the child.

In an affidavit, the child's natural father said he believed it was in his son's best interests that the judge had made the orders. He submitted the judge was acting within jurisdiction in doing so. He said the EHB had not drawn up a care plan in accordance with the judge's directions and was in breach of the judge's orders, including those regarding the father's access to the child.

In another affidavit, the child's mother said she had agreed to the child being placed in the care of the EHB but she wanted the child to stay with his foster parents and to have the same social worker. She opposed the board's application in the proceedings.

On behalf of the child, it was submitted the orders made by Judge McDonnell were valid.

Mr Gerry Durcan SC, for the child's father, said the legislature had made a deliberate decision to give very wide powers to the courts in the Child Care Act, because of the necessity of protecting the constitutional rights of children and their parents.

There was a "veritable flood" of litigation in the High Court relying on the inherent obligations of the courts to protect those constitutional rights and in not one case had the health boards argued the High Court cannot review what is happening to children in care.

There was a statutory obligation on the health boards to care for children but the courts were also obliged to protect the children's constitutional rights. It was possible to have conditions or directions attaching to a care order, contrary to what the EHB argued, he said.

Mr Durcan said it was not surprising that the District Court has express statutory power to attach conditions or directions affecting the welfare of a child. Otherwise, a judge who was critical of a health board's treatment of a child would be placed in the dilemma of not being able to make any order at all, other than giving the child over to the care of the same board.

The hearing continues today.