The High Court has quashed a District Court decision refusing to consider an application concerning orthodontic treatment for a child in foster care, ruling that the court had jurisdiction to assess the child’s welfare and the circumstances of the request.
In a judgment delivered on 9 November 2016, Ms Justice Baker said the District Court President had erred by treating the separation of powers as preventing her from considering the application under section 47 of the Child Care Act 1991. The High Court made an order of certiorari quashing the President’s decision of 25 February 2015.
The applicant, identified in the judgment as VQ, and her husband had cared for the child as foster parents since 2004. The child, then aged 14, had dental misalignment, including a conspicuous overbite and crooked teeth. The judgment records that the treatment was considered beneficial, was unavailable through the public scheme because the child did not meet its clinical threshold, and had been privately funded by the foster parents at a cost of almost €5,000, payable by instalments.
The foster parents applied to the District Court for directions about dental treatment. The Child and Family Agency opposed the application, arguing that the standard foster allowance was sufficient to cover what it regarded as a usual expense for families with growing children. The District Court heard evidence from the applicant, a dental surgeon and a social work team leader before refusing the application.
Ms Justice Baker said section 47 gave the District Court broad authority to decide questions affecting the welfare of a child in care. That authority did not mean the CFA must fund any treatment found to benefit a child. The District Court could weigh matters such as the child’s welfare, whether the treatment was routine or necessary, the foster parents’ means, the terms of their agreement with the CFA, and whether the child’s needs might otherwise go unmet.
The High Court rejected the argument that the foster parents’ decision to pay for treatment themselves meant no welfare question remained. But it stressed that quashing the refusal did not require the District Court to order reimbursement. The judicial review concerned the lawfulness of the District Court decision, and Ms Justice Baker said she had no power in these proceedings to direct the CFA to pay some or all of the treatment costs.
The judgment also urged the CFA to pursue a further review of the funding application through a process with sufficient independence from the original decision-maker. The High Court did not determine whether the CFA should fund the treatment.