Who Makes the Final Decisions for Children in State Care?

Section 47 of the Child Care Act 1991 gives the District Court the power to make directions on matters affecting the welfare of a child in the care of Ireland’s Child and Family Agency, TUSLA. Court decisions, particularly the McDonnell judgment and subsequent cases, confirm that this power is very broad. Our Health & Prosecutions team explores how the courts have interpreted these powers and why, where disagreement arises about decisions affecting a child in State care, the District Court ultimately has the authority to determine what is in the child’s best interests.

What you need to know

• Section 47 of the Child Care Act 1991 allows the District Court to make directions on matters affecting the welfare of a child in the care of TUSLA.
• The McDonnell judgment confirmed that these powers are very broad and give the District Court overall authority in matters concerning children in State care.
• Later cases have reinforced that the Court may intervene where a dispute arises about decisions affecting a child’s welfare.
• However, the Court should not interfere in routine, day-to-day care decisions made by TUSLA or foster carers.
• Anyone considering challenging a Section 47 direction should seek specialist legal advice before pursuing an appeal or judicial review.

Background

Most professionals involved in child protection cases before the District Courts will be familiar with the legislative framework in this area. For several decades, this has been governed by the Child Care Act 1991, as amended, particularly in cases where children are already in the care of the State. Those same professionals will also have come into some level of contact with Section 47, arguably the most controversial section of that Act.

In brief, Section 47 states that the District Court may ‘give such directions and make such order on any question affecting the welfare of the child (in the care of TUSLA) as it thinks proper and may vary or discharge any such direction or order.’

To those examining the term “any question”, some might argue that this wording is quite broad and legally vague; and they would be correct! Over the years, this uncertainty about the extent of powers given to the District Court by Section 47 has led to natural tensions. There has been broad uncertainty leading to legal challenges questioning how far the District Court can go – especially when it comes to directions against TUSLA.

McDonnell

The McDonnell[1] judgment was a High Court Judgement which answered this question clearly in 1991. This is possibly a reason why this fundamental Section 47 judgment is sometimes overlooked or completely forgotten when it comes to considering challenges to Section 47 directions of the District Court in the present day.

So, what did the McDonnell judgment say about Section 47 and the power of the Court to make directions against TUSLA? Mr Justice McCracken described the jurisdiction of the District Court as “extremely wide” and stated:

“In my view, Section 47 is an all embracing and wide-ranging provision which is intended to entrust the ultimate care of a child who comes within the Act in the hands of the District Court. It should be noted that it is contained in the part of the Act dealing with ‘Children in the Care of the Health Boards’ and is not qualified in any way. I think the only reasonable interpretation of Section 47 is that it is intended to give the overall control of children in care to the District Court.”

Of course, many years have passed since 1991. So, has this “all embracing and wide ranging” interpretation of Section 47 been weakened to any significant extent by more recent judgments?

Staunton

It is worth noting that the Staunton[2] judgment did set some limitations on whom the Court can direct under Section 47 by confirming it cannot be used by the District Court to impose personal positive obligations on third parties such as parents. For instance, the District Court cannot direct a parent to attend for parenting capacity assessment. The power of the District Court to make Section 47 directions against TUSLA remains unchanged by this judgement. So, using this example, TUSLA can be directed to fund a parenting capacity assessment, however, it is up to the parents whether they engage or not.

In fact, other post-McDonnell judgments have reiterated the McDonnell interpretation of Section 47 and its scope.

Western Health Board

In a 2001 case concerning the Western Health Board[3], the High Court confirmed that:

“Section 47 empowers the District Court to do whatever it deems appropriate to achieve the policy of the Act of 1991 as a whole and the objectives set out in section 24 of the Act of 1991.”

VQ v Horgan

In the later case of VQ v Horgan[4], Ms Justice Baker of the High Court made these further observations in relation to the scope of Section 47:

“The case law has emphasised the far reaching and wide jurisdiction under section 47 by which is vested in the District Court the power to make all decisions relating to the care and welfare of a child, subject only to the proviso that the court ought not interfere unless matters arise which require consideration of the welfare or interests of the child. The court will not generally make orders more properly characterised as day-to-day matters and thus cannot be said to exercise a role by which it interferes with reasonable and prudent decisions made by the CFA (TUSLA) or the foster carers.”

VQ v Horgan confirms that Section 47 gives the District Court the power to make “all decisions” but only where “matters arise” which “require consideration” of the child’s best interests. The Court should not micromanage “day to day” care decisions relating to the child in care. TUSLA should be allowed to fulfill its statutory duty to provide care and protection for the child.

Judge Baker goes on to state that:

“The Oireachtas considered it desirable and necessary to put in place a statutory mechanism in section 47 by which questions regarding the care and welfare or the child could be determined”

While the Court should not involve itself in day-to-day micromanagement of childcare cases, if a dispute or divergence of views arises about care decisions, the District Court is fully authorised by Section 47 to involve itself and make “all decisions” as necessary.

Judge Baker, referring to the Western Health Board decision of 2021, goes on to state that:

‘Section 47 is ‘couched in the widest possible terms’ and a restrictive interpretation of the extent of that power is not justified in the scheme of the legislation. As Finnegan J. pointed out, there is no qualification on the statutory power, and the section empowers the District Court to make directions and to do whatever it deems appropriate to achieve the policy of the Act as a whole.’

Conclusion

The McDonnell judgment and later judgements make it clear that the ability of the District Court to make Section 47 directions should be interpreted in the broadest possible manner. For those who work with TUSLA or are involved in the child protection arena, it is useful to be aware that there are very few limits on the District Court’s Section 47 powers to protect the rights of a child in care. Anyone considering challenging a Section 47 direction of the District Court, whether by appeal or judicial review, should seek expert legal advice before doing so.

Contact our Health & Prosecutions team

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Eastern Health Board-v-McDonnell [1991] 1 IR 175

[2] J.G. & Ors. -v- Judge Staunton & Anor. [2014] 1 I.R. 390

[3] Western Health Board -v- KM [2001] 1 IR 729

[4] [2016] IEHC 631