The High Court has ruled that, since the Assisted Decision-Making (Capacity) Act 2015 commenced, a wardship court cannot make a new detention order under section 9 of the Courts (Supplemental Provisions) Act 1961 for an existing ward of court. The ruling decides the court’s jurisdiction, not whether KK should be detained: that question was adjourned for further submissions on the High Court’s inherent jurisdiction.
The Child and Family Agency (CFA) sought orders that would allow gardaí to search for, arrest without warrant and return KK to her placement if she absconded or failed to return from approved leave. It also sought orders permitting detention in an approved centre or acute hospital if clinicians considered that appropriate. The judge found that the proposed return-to-placement order would restrict KK’s liberty and had to be treated as a detention order, despite being conditional.
KK was made a ward of court in July 2020. Earlier detention orders were discharged in July 2021. The CFA obtained a further order in June 2022, which was extended in October, but no extension was made in February 2023 because supporting evidence had not been provided. The fresh application was brought in May 2023, after the 2015 Act commenced on 26 April.
The CFA and the HSE argued that section 56(2) preserved the wardship court’s section 9 powers while KK remained a ward. The General Solicitor, acting for KK as her Committee, argued that the new statutory regime had changed the position. The judgment records that KK did not want further court involvement and wished to be free from the court. It also records that there was no evidence before the court establishing whether she had a “mental disorder” under the Mental Health Act 2001.
Justice Niamh Hyland concluded that Part 10 of the 2015 Act changed the regime for wardship detention. It provides for review of certain orders already in force when the Act began, including review by an independent consultant psychiatrist, and directs that proposals to detain a person who may have a mental disorder follow the 2001 Act’s procedures. A new order made for KK would not qualify for the Part 10 review process. The judge said there was no indication that the Oireachtas intended wards subject to new orders to receive fewer protections than wards whose orders pre-dated commencement.
The court therefore held that section 9, read in light of the 2015 Act, no longer authorises a fresh detention order for an existing ward. It did not decide the separate question of how section 108(4), concerning discharge from detention, should be interpreted. Nor did it decide whether KK should be detained under the High Court’s inherent jurisdiction. The matter was adjourned to allow any party to make further submissions on that application.