The High Court has refused the Child and Family Agency’s application to quash a District Court direction about the care of two children under interim care orders.
The District Court had directed that the children stay with their older sister during the school week and with foster carers at weekends and during school holidays. The agency challenged that direction, arguing that the District Court lacked power to decide their placement and that responsibility rested with the agency under section 36 of the Child Care Act 1991.
The children’s older sister and their mother opposed the judicial review. The guardian ad litem agreed with the agency that the placement was not in the children’s best interests, but disputed its argument about the District Court’s powers.
The agency raised concerns that the sister had not been assessed or approved as a relative foster carer. It also relied on evidence that the children had been late for school on six of nine days during a two-week period in which their sister cared for them. The sister said she had cared for them full time since September 2018, and that the District Court’s arrangement allowed them to remain at their current school. The guardian ad litem described advantages and disadvantages to the arrangement, and said the disadvantages outweighed the advantages.
Mr Justice MacGrath distinguished the question of the District Court’s legal power from how the judge had exercised it. He held that section 47 gave the District Court power to direct or permit a child’s placement, including within the State. That power is not limited by the conditions that apply to the agency under section 36 or related regulations.
The court said placement directions should be made rarely and with considerable caution. A District Court considering such a direction should have regard to the statutory framework and to the agency’s recommendations and observations. If it disregards relevant placement considerations without good reason, an order may be vulnerable to challenge because of how the power was exercised, rather than because the court lacked power.
The High Court said the manner in which the District Judge exercised the power was not the subject of this judicial review. It therefore refused the agency’s application. It did not decide the respondents’ alternative argument that the application should be refused because an appeal was available.