The District Court has left in place an order requiring seven days’ notice before a child in Health Service Executive care can be removed from the jurisdiction, after refusing the Minister for Justice’s application to revoke or vary it.
The order, made on 16 April 2010 under section 47 of the Child Care Act 1991, was intended to give the parties time to consider the welfare implications of a proposed removal and any further applications they might make. The judgment, dated 9 July 2010, describes the proceedings as an ongoing inquiry and says none of the matters set out in it were final and all remained open to challenge.
Child 1, whose identity is withheld, was born in Ireland in March 2007 and had spent about 30 of the first 39 months of his life in HSE care. The court said his present foster carers had cared for him for virtually all that time and had become his primary attachment figures. The HSE did not plan to return him to his mother’s care at that stage. Reports before the court raised concerns about the mother’s mental health and the child’s safety; the judgment also records that the mother had not given evidence and that no HSE witness had been cross-examined.
The child and his mother had received deportation orders. The court was told those orders had not been challenged within the statutory time limit. The HSE had applied to the Minister to revoke the child’s order, but no decision had been made. At the hearing, the Minister undertook not to deport the child before deciding that application and said he would apply to the court before deportation if a care order remained in force.
The Minister argued that the seven-day notice requirement effectively stayed or obstructed enforcement of a valid deportation order and exceeded the District Court’s powers. The HSE, the mother and the guardian ad litem opposed changing the order, arguing it was within the court’s child-welfare powers.
The judge held that section 47 allowed the court to act where a question affecting the welfare of a child in care arose from a proposed action by another body, including action under a valid order. The judge accepted that the notice condition delayed deportation briefly, but found the evidence did not show it made enforcement extremely difficult or impossible. The order did not require the seven-day notice period to end on the date of removal.
The court said reunification should be promoted when it serves the child’s welfare, but it had not found that reunification was in this child’s interests; that remained for the ongoing inquiry. The court said the order should remain unless the Minister confirmed that any removal would require a further court application. If he gave that confirmation, the further application should be made on seven days’ notice. The judgment records no such confirmation, and its final operative direction is that the existing order remain in place.