The High Court has declined to answer legal questions referred by a District Court judge in a child-care case, finding that the case stated did not establish that the questions arose in the child’s best interests.
Mr Justice MacGrath delivered the judgment on 12 July 2018 in a consultative case stated under section 52 of the Courts (Supplemental Provisions) Act 1961. The High Court did not decide whether the proposed assessment or support could be ordered under section 47 of the Child Care Act 1991.
The Child and Family Agency had applied to the District Court for a two-year care order for a child identified as A.B. The application was opposed by the child’s mother, identified as L.B. The District Court made an order placing the child in the Agency’s care for six months from 22 December 2017 while it sought the High Court’s opinion on questions of law.
The District Court judge’s stated findings included that the mother was loving and conscientious but, on the limited evidence before him, could not provide adequate care without appropriate family or non-family support. He found that family support was unavailable and that the necessary level of non-family support had not been determined. The judge asked whether he could direct the Agency to establish the cost of a suitable parenting assessment, carry it out, and provide services if the assessment indicated they would improve the mother’s parenting capacity sufficiently and serve the child’s interests.
The Agency argued that the case stated lacked findings about the child’s welfare needed to answer those questions. The mother’s position was that the District Court had broad powers under section 47 and should consider whether support could allow her to care for the child. Those were submissions by the parties, not decisions made by the High Court.
Mr Justice MacGrath said the District Court’s powers under the Act were centred on the child’s best interests and welfare. Although the case stated referred to a general presumption that the child’s welfare was best served by being parented by a biological parent, the judge had not expressly found that the proposed assessment was in this child’s best interests. The stated concern that the effects of professional care on the child’s development had not been ascertained did not supply that missing finding.
The High Court concluded it could not treat constitutional or statutory presumptions as findings of fact. Without a finding that the questions arose, on the evidence considered, in the child’s best interests, it was unable to answer them. The judgment therefore provided no affirmative or negative ruling on the District Court’s proposed directions. The District Court’s six-month care order was described as pending determination of the referred legal issues; the High Court did not determine the underlying care application.