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Judgment
Title:
SB & anor -v- Health Service Executive (Direction to Prevent Change of Placement)
Neutral Citation:
[2011] IEDC 10
District Court Record Number:
N/A
Date of Delivery:
12/08/2011
Court:
District Court
Judgment by:
Horgan P.
Status:
Approved

[2011] IEDC 10
AN CHUIRT DUICHE THE DISTRICT COURT

SB & THE GAL

APPLICANTS
-AND-

HEALTH SERVICE EXECUTIVE

RESPONDENT
CHILD CARE ACT, 1991— SECTION 3 AND 18

IN THE MATTER OF A CHILD

8 December 2011


1. This matter came before the Court on 8 December 2011 by way of a section 47 Application for Directions as to the welfare of a 14-year-old child.

2. The Guardian ad Litem (“GAL”) for the Child in essence seeks a direction from the Court that the Child should not be moved by the HSE from her current residential placement in Residential Unit 1. The mother makes a similar application. The HSE argues that having appropriately placed the Child in this residential unit, it is now involved in dispute with the service provider as to the funding for the placement and, as the dispute has become intractable, it has no option but to move the Child to what it has deemed to be an appropriate alternative placement in Residential Unit 2 which is also a private residential placement.

Facts
3. The circumstances of this case are unusual and difficult.

4. The Child suffers from an exacerbated form of PTSD (post traumatic stress disorder). She came into the care of the HSE in January 2010 and a full care order was granted to the HSE in April that year pursuant to section 18 of the Child Care Act, 1991 on the basis that the Child was the victim of chronic neglect and familial sexual abuse.

5. The Child has a specific learning difficulty and her overall ability/functioning appears to be in the lower range. She has limited literary skills. She has had multiple moves since coming into HSE care and has had episodes of self-harm and mental health hospitalisations on two occasions due to low mood and suicidal ideation. Her level of mental health difficulties fall within the high end of the range of distress requiring an involuntary admission to hospital under section 25 of the Mental Health Act 2001. The Child has been the victim of rape following her absconding from her care placements.

6. Her moves both in Care and for hospitalisation are set out as follows:

        1) 21 January 2010: Family placement with her maternal grandmother with her sister.

        2) May 2010: Emergency Foster Care placement (placed with sister).

        3) June 2010: Long term Private Foster care Placement (placed with sister).

        4) June 2010: Respite Placement (placed with sister).

        5) August 2010: Emergency Foster Care placement (placed with sister).

        6) 12 August 2010 to 18 August 2010: Placed with her maternal aunt, while waiting for placement.

        7) 19 August 2010 to 23 August 2010: Child 1 and sister went to a respite placement again.

        8) August 2010 to 27 January 2011: Placed in Foster Placement — Child 1 was placed separately from sister for the first time.

        9) 27 January 2011 to 7 February 2011: Placed in Respite Placement due to placement breakdown.

        10) 7 February 2011 to 25 April 2011: Placement in Residential Unit 3.

        11) 25 April 2011 to 26 April 2011: Placed in respite foster care.

        12) 26 April 2011 to 29 April 2011: Placement in emergency residential unit.

        13) 29 April 2011 to 16 May 2011: Placement with Residential Unit 3.

        14) 16 May 2011 to 8 June 2011: Placement in Hospital (presenting issues relating to PTSD).

        15) 8 June 2011 to 22 July 2011: Placement in Child and Adolescent Inpatient Unit and detained under Section 25 of the Mental Health Act.

        16) 22 July 2011 to date: Placement in Residential Unit 1.

7. The Child has had quite a number of moves in a short period of time.

8. The Court has been provided with the following documents:

        (a) Discharge, Summary, and Diagnosis of the Hospital Registrar and the Consultant Child and Adolescent Psychiatrist, dated 22 July 2011;

        (b) Assessment Summary of the Senior Clinical Psychologist and the Registrar in Child and Adolescent Psychiatry, dated 18 October 2011;

        (c) Letter to the Guardian Ad Litem from the Hospital Registrar, dated 29 November 2011, noting that the Child has had several changes of placements and carers, which puts her at significant risk of on-going attachment, relationship, and personality difficulties. Furthermore, it noted that she has already had significant contact with child and adolescent mental health services and remains very vulnerable. It also notes that the Child’s mental health and emotional well-being will be at risk of deteriorating with the re-emergence of very challenging behaviours should she be moved again to another placement. The Hospital Registrar supported the GAL’s view that the Child should remain in her current placement, ideally until she is 18 years old.

        (d) Letter to the GAL from the Senior Clinical Psychologist and the Consultant in Child and Adolescent Psychiatry noting concern at the anticipated termination of the Child’s current placement noting that a change in her residential placement would be detrimental for her at this time.

        (e) Letter to GAL from the Senior Social Worker with the Child and Adolescent Inpatient Unit, noting that any attempt to dismantle the current placement would serve to utterly undermine progress made to date, and that the frequency of previous placement moves had contributed to at least one episode of self harm and that to remove her from the current placement would negatively impact on her mental and emotional health.

        (f) The report of the Social Worker and the Social Work Team Leader, dated 8 December 2011 with the Statement of Purpose and Function of Care Services run Residential Unit 2.

        (g) The Report of the GAL dated 28 November 2011.

9. The Court has had the benefit of hearing evidence from:
        1. the Social Work team leader;

        2. the Principal Social Worker; and

        3. the GAL.

And, the Court has also had the benefit of submissions from Senior and Junior Counsel for the HSE; Junior Counsel for the mother; and Senior and Junior Counsel for the GAL.

10. The alternative placement, Residential Unit 2, was proposed by the HSE as one of the options proposed for the Child before she was placed in her current placement. Its general and therapeutic services were deemed appropriate for her needs at that time. However, Residential Unit 2 was not deemed suitable to form part of her care plan then because one of the other occupants in the unit at that time was male and the Child’s therapeutic needs dictated the need for a gendered placement given her array of particular needs.

11. The HSE proposed Residential Unit 2 to the Court as now being a suitable alternative placement for the Child as the male resident has left; however, the GAL’s evidence is that the current mix of troubled young people in Residential Unit 2 (and in particular one resident’s profile) would pose serious difficulties if the Child was to be placed there. Her concern is that in light of (a) the medical reports and the Child’s diagnosis and prognosis, a move could cause her serious harm; and (b) furthermore, having regard to the mix of residents currently in Residential Unit 2, it is not an appropriate placement for the Child. The view of the GAL is that in her experience young people who have a propensity to self-harm tend to feed off one another and mirror such behaviours and the existing mix of residents would exacerbate the presenting difficulties for this young woman.

12. The HSE’s choice of Residential Unit 2 as a suitable alternative placement was made in advance of the Social Work Team visiting it and forming a professional opinion that it was a suitable placement for the Child having regard to her individual needs.

13. The internal HSE process employed for seeking additional funding for the existing placement did not refer to medical reports in respect of the Child’s individual medical needs and vulnerabilities.

14. The current placement is single occupancy but with a capacity to have other young person’s placed there but it is constrained by the requirement to ensure that the mix of residents is compatible to the Child’s individual needs.

Decision
15. Having carefully considered the submissions made to Court by each of the parties, the Court has been requested to make directions under section 47 of the Child Care Act, 1991 having regard to section 24 of the Child Care Act, 1991. They state as follows:

        ‘47.—Where a child is in the care of a health board, the District Court may, of its own motion or on the application of any person, give such directions and make such order on any question affecting the welfare of the child as it thinks proper and may vary or discharge any such direction or order.’

        ‘24.—In any proceedings before a court under this Act in relation to the care and protection of a child, the court, having regard to the rights and duties of parents, whether under the Constitution or otherwise, shall—

            (a) regard the welfare of the child as the first and paramount consideration, and

            (b) in so far as is practicable, give due consideration, having regard to his age and understanding, to the wishes of the child.’

16. While the Court has been furnished with a note as to the Declaratory Relief which counsel for the GAL made in another Court, the application before the District Court by the GAL is limited to one request for a Direction that it is in the best interests of the welfare of the Child, while she remains in the care of the HSE, that she continue to reside in Residential Unit 1. The Application by the Child’s mother, who is the first named Respondent in the proceedings, is in similar terms.

17. Clearly, the District Court cannot give declaratory relief and would not presume to do so, however, the District Court can give directions under section 47 within the parameters of that section and informed by the jurisprudence referred to by counsel for the GAL, namely the case of EHB v District Judge McDonnell and WHB v M [2001] IESC 104.

18. Counsel for the mother supports the application of the GAL and emphasises that her client is concerned that a change in the Child’s placement at this critical time would be inimical to her daughter’s mental and emotional health. Furthermore, the move would constitute an interference with her and the Child’s constitutional and Article 8 rights to respect for private and family life. I am conscious that the HSE is an ‘Organ of State’ within the meaning of section 3 of the ECHR Act, 2003. Sections 2, 3, and 4 of the Act of 2003 impose positive obligations on the Organs of the State in relation to the interpretation of laws, the performance of the State’s obligations, and the interpretation of the Convention provisions. Section 3 is as follows:

        ‘3.—(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions.’
19. Section 4 provides that judicial notice shall be taken of the Convention provisions and of, inter alia, any declaration, decision, advisory opinion, or judgment of the European Court of Human Rights (ECtHR) established under the Convention on any question in respect of which that Court has jurisdiction, and further provides that a Court shall, when interpreting and applying the Convention’s provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions, and judgments.

20. The Convention’s case law in this context is clear to the extent that there is a positive obligation on States to assure Convention rights so that they are real and not illusory or theoretical.

21. Counsel for the HSE urge the Court to have regard to the economic realities which the HSE face in providing funding at this difficult time and consider the line of cases set out in WHB v M [2001] IESC 104 and the helpful submissions provided by the legal team for the HSE.

22. The District Court is a court of local and limited jurisdiction. Section 47 directions must be guided by the parameters of section 47 and only focus on the question before the court affecting the welfare of the Child. Having considered carefully the evidence tendered and the submissions made by counsel and having considered the relatively short period during which the Child has been in the care of the HSE and the multiple moves in her placement in that period, her mental and emotional integrity require her to remain in her current placement in order to meet her particular vulnerabilities.

23. It is entirely a matter for the HSE to deal with its funding issues in such a manner which it sees fit. The Child cannot become a pawn in that regard.

24. Accordingly, pursuant the section 47 of the Child Care Act, 1991 the Court directs on the basis of the evidence tendered that the Child remains in her current placement.

25. A view has been expressed that this is a landmark application the outcome of which could have a domino effect on the HSE. I do not accept that this is the case. This is an unusual case presenting quite unique circumstances which impact on this particular child in an acute manner.

26. The HSE engaged Senior Counsel in this case in the course of the application, and on the basis of equality of arms and procedural fairness, and because of the perceived complexity of the matters at issue and the importance of same for the child the subject matter of the proceedings, I direct (on consent) that the case is certified for Senior Counsel. The GAL’s costs should be measured as of today and I make the usual order for costs on behalf of the GAL, same to be taxed in default of agreement.

27. The remaining issues and access issues yet to be determined are to be adjourned for determination to the 26 January 2012.











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