The High Court has ruled that the Child and Family Agency (Tusla) should consider the need for court protection for three children cared for by their grandmother, after the agency failed to review their case for more than four years and did not respond to repeated letters raising concerns.
The judgment, delivered by Mr Justice Meenan on 13 December 2018, arose from a judicial review brought by the children’s grandmother, identified as P.G. The children’s mother is identified as M.; the children are anonymised as D., K. and A.
The grandmother took on their care in September 2013 under an arrangement envisaged as temporary, following an emergency case conference with Tusla. She gave up her employment and moved to another part of the country. A child protection plan was drawn up, and a further case conference took place in April 2014. The judgment says no formal review of the plan followed.
The grandmother’s solicitor wrote to Tusla repeatedly in 2016 and 2017, describing the children’s situation as precarious and asking the agency to review it and set out what support it would provide. The letters raised concerns about the mother’s access applications and the grandmother’s lack of legal custody. The judgment records that Tusla did not reply to the 2017 letters. In April 2018, the agency told the grandmother it was closing the family’s case because it had no current concerns.
Tusla’s position was that the children were with their grandmother under a private arrangement and that it had no child protection or welfare concerns while they remained in her care. Its involvement with access had included mediation and, earlier, supervision.
The court accepted that there was a basis under section 18(1)(c) of the Child Care Act 1991 to seek a care order, on the ground that the children’s health, development or welfare was likely to be avoidably impaired or neglected. It also held that the circumstances should trigger consideration of the agency’s duty under section 16 to apply for a care or supervision order where a child needs protection unlikely to be received without a court order.
The judge criticised the absence of a review and Tusla’s failure to respond to detailed correspondence, saying the agency was not in a position to contest the account set out by the grandmother. The court found that the grandmother was entitled to succeed in the judicial review. It did not specify a final order in the judgment: the judge said he would hear the parties on the form of the order to be made.