The High Court directed the Health Service Executive to prepare a welfare report on three children within ten days, after finding that their father had not consented to their placement in foster care. It did not order their release from care, and left the question of where they should live for further consideration.
Mr Justice Henry Abbott delivered the judgment on 19 February 2007 in an Article 40.4 inquiry brought by the father, D O’H, concerning the lawfulness of the children’s continued care by the HSE through foster carers. The children were already in foster care when the court considered the application.
The parents had previously agreed arrangements under which the mother, T H, had custody and the father had access. The father was later appointed a guardian. The HSE said both parents had consented to a second period of foster care lasting 12 months, and argued that the children were lawfully in its care under section 4 of the Child Care Act 1991. It submitted that the father could not make the placement unlawful by withdrawing consent.
The judge accepted that, if the parents had jointly consented, a dispute about revoking that agreement would ordinarily be a private-law matter for the District Court. But he found that the father had not consented to this second placement. He relied on the father’s affidavits, the absence of his signature on the care programme and the HSE affidavits’ failure to state clearly that he had agreed.
The judge interpreted “parent having custody” in section 4(2) to include a non-marital father who had been appointed guardian. He said that reading was consistent with the Constitution and avoided discrimination between parents. On that basis, the father’s consent mattered to whether the HSE could maintain the children in care under the voluntary-care provision.
The court did not, however, find that the mother had abandoned custody, or decide the eventual private-law arrangements between the parents. The judge said he would not order the children’s immediate release, noting their existing foster placement and the need to consider their welfare. He directed the HSE to provide a report on all three children within ten days and ordered the case to be mentioned around that time, alongside an outstanding special summons. The judgment left the release question open pending further consideration.