The District Court refused an application to direct the Health Service Executive (HSE) to seek a supervision order for a child in its care, holding that it had no jurisdiction to compel the agency to issue the proceedings.
The ruling was given on 28 September 2010, when an interim care order under section 17 of the Child Care Act 1991 was due to expire. No application for an order under the Act had been brought by the HSE. The court recorded that the child was then in HSE care and accepted that the guardian ad litem and respondent mother were entitled to make the application.
The guardian ad litem applied orally under section 47 for the court to direct the HSE to bring an application for a supervision order under section 19. The mother supported the request.
The HSE argued that section 19 allowed a supervision order only on an application by the HSE, subject to exceptions in section 18(5) and (6) that did not apply. It said whether to apply was for the HSE to decide under its statutory duties.
The guardian ad litem and mother argued that section 47 gave the court broad supervisory powers over questions affecting the welfare of a child in HSE care. They relied on prior decisions, including *Eastern Health Board v McDonnell* and *Western Health Board v KM*, and submitted that a direction would serve the child’s welfare and constitutional rights.
The court accepted that the Act should be construed purposively and, where fairly possible, broadly. But it said section 47 had to be read within the Act’s framework and did not place the District Court at large in the orders it could make.
The judge reasoned that the District Court’s jurisdiction was to hear and determine proceedings, not to issue them. Directing a party to start proceedings would, in effect, be issuing them. The judge also found that the Act specifically reserved applications for supervision orders to the HSE, apart from statutory circumstances that were absent in this case. Section 47 could not give the court or another party a power the Act had reserved to the HSE, the ruling said.
The judge added that granting the request would make the court act as a review or appeal body over the HSE’s decision not to apply, a role the court did not have jurisdiction to perform. The application was refused. The ruling did not make a supervision order or direct the HSE to apply for one.