Court refuses HSE's financial argument to move child, prioritizing child's stability and attachment to current placement.

[2010] IEDC 1

AN CHUIRT DUICHE THE DISTRICT COURT

HEALTH SERVICE EXECUTIVE

APPLICANT

-AND-

SM & AM

RESPONDENTS

CHILD CARE ACT, 1991— SECTION 47

IN THE MATTER OF CHILD 1

13 May 2010

This is an Application grounded upon section 47 of the Child Care Act, 1991 and moved by the Guardian ad Litem (“GAL”) for the

infant, Child 1, in respect of his placement and residency wherein the GAL requests that no change to placement take place at

present and the said Application is contested and opposed by the HSE.

Introduction

1. I believe that it is unnecessary and superfluous to set out the background to this case because the issue of the Application is (a)

singularly based and is (b) not relevant to the substance of the Interim Care Order. Accordingly, I have, however, for the sake of

comprehension, attached the GAL’s Report of 6 May 2009 to the Schedule of this decision. Also, I have included, in the schedule

hereto, a copy of Social Worker 1’s Report dated 6 of May, on behalf of the HSE contesting the Application. The latter Report is very

much an emulation of the Report of 5 February. Interestingly, the “Placement” component of the February Report is not in the May

Report other than to say it is the subject of “a S.47 (CCA 1991)” application, namely this Application.

2. To address the issue, on 25 January 2009, Child 1, a young child under the care of the HSE, wrote a letter to his GAL, in the

following terms:

“I don’t want to move from Location 1 to Location 2 because I feel settled here and Location 2 is near where all my

cousins live and I have bad dealings with them.

There’s only two other kids in Location 1 and it’s much quieter than if I lived in Location 2 with 4 other kids.

I’ve gotten used to the staff here and I trust some of them. What’s the point of moving to Location 2, I don’t know

any of the staff.

I’m happy enough to see my family on Wednesday and Saturdays. I enjoy going out on my little trips to swimming,

go-karting, pictures and shopping.

I don’t like Location 2. It is beside a rough area. I grew up in a rough area, I don’t want to go back to that.

Can you come to meet me to talk about this Please?

From Child 1”

3. I have yet to see Child 1’s letter written to Social Worker 1, but I suspect that in the main it express similar wishes or desires.

Initial Placement

4. Child 1 had been a resident in Location 1 since 1 November 2008, and some three months later, in a Professions Meeting of 3

February 2009 the outcome thereof outlined, in their view, what the main issues were, specifically:

• The Placement committee identified Location 2 as an appropriate residential setting for Child 1. At the time of

Child 1 coming into care of the HSE, an alternative private residential unit was sought in the short term until a

vacancy became available in Location 2.

• A vacancy became available in Location 2 in January 2009 and Child 1 was informed of the move. Child 1 engaged

with the induction plan for the first two meetings but has since failed to engage in the last week.

• Child 1 has stated that he will abscond if he is moved to Location 2 and his father has stated that Child 1 will just

run away to him. Father has stated that Child 1 would be safer if he was left in Location 1. However, the Social

Work Department have never had issues with Child 1’s own safety, but rather the level of care his father was

providing for him on a daily basis due to mental health issues and drug-misuse.

• The Plan is for Social Work and Location 2 staff to meet with Mother and Father and to alleviate any fears they

may have regarding Child 1’s move to Location 2.

• Child 1 and his father are then going to be invited to Location 2 to assess their concerns that they have about

the move.

• It is the assessment of the Social Work Department that if Child 1’s father is agreeable to the move to Location 2,

consequently, Child 1 will agree to the plan.

Decision to Change Placement

5. I have not seen any of the preparatory work which was done prior to this meeting nor have I seen any minutes or resolutions of

the meeting, but I do not feel at a disadvantage because of this. Also, I have not had the opportunity of assessing the material which

the HSE considered, nor have I seen any Plan of Action which was to give effect to the outcome of that meeting and thus my

interpretation may suffer accordingly be that as it may I do not believe that ‘a plan’ existed. Much of the anticipated move of Child 1

from his Location 1 Placement was by the seat of the HSE’s plans. A Plan sets out objectives and sets out the means to achieve

those objects and the measures necessary to accomplish same. This is what I understand to be a Plan and having regard to the

above bullet-points of the HSE there can be no doubt that no such plan existed.

6. Social Worker 1 states in her Report, under the Heading “Child 1’s Progress” that:

“Child 1 appears very anxious about his future at present due to the ongoing court proceedings regarding his

placement options. This has manifested in Child 1’s acting out behaviour in Location 1 along with a relationship

breakdown with his mother. Child 1 also was absent at risk from Location 1 with another resident on 27/4/09 where

he absconded from the unit and he presented himself to the Garda Station.”

7. Firstly, Child 1 is not anxious about the court proceedings but rather the arrogant and cavalier manner in which the HSE are dealing

with his placement. Clearly, this has impacted and affected his behaviour at the placement and also his relationship with his mother.

The HSE must take responsibility for this. Secondly, an option represents a choice — there was never any choice here and so

‘placement options’ did not exist. Thirdly, ‘his acting out behaviour’ is retaliation to the ill-conceived treatment he has received from

the HSE. Had the placement in Location 1 been strained and broken-down, the HSE would have been liable to Child 1 and would have

left it open to his Guardian ad Litem to take such action as would be just and reasonable to protect, defend and vindicate Child 1’s

rights.

8. Normally, the workings of the HSE in respect of placements would not come under immense scrutiny and certainly it is exceptional

for a decision of the HSE to be subjected to minute analysis by a District Court which analysis would be more appropriate to the

Superior Courts. But, in the instant matter I believe I am obligated to do so here in order to demonstrate the enormity of the issue

and the shortcomings and deficiencies which are imperceptible because of the hidden features of the approach taken by the HSE in

respect of the ‘placement change.’

9. In the HSE Report of the 5th February 2009, the Placement Section states that:

“Child 1 was to begin induction to Location 2 where he will eventually live. This is primarily for reasons related to

geographical location and to improve access he will have with his family and to school. This will also facilitate the

family work that will be the focus of Location 2’s work with Child 1 with a view to Child 1 returning home. Child 1

attended the first two induction meetings with Location 2, but has failed to engage with any more of the induction

in the last week. Child 1 has written a letter to the Guardian ad Litem and Social worker 1 outlining his concerns for

moving to Location 2. Child 1 feels that his safety is an issue if he moves to Location 2 as he reports that he has

had prior family disputes with cousins in that area. Social work has no previous allegations to confirm these

concerns from Child 1 at present. Social Work are to work with Child 1’s parents in the induction plan for Location 2

with a view to encouraging Child 1 to engage with the move.”

10. From the very first sentence, it is clear that a decision had been made and that little or no consultation would be entertained,

that is, the matter is, was and intended to be a fait accompli. The HSE, in evidence, suggested that a change of placement was

necessary for access/school purposes but this was not communicated to Child 1 and seems to have evolved as a justification rather

than an explanation to the ‘change of placement’. In relation to access and the school-run, there is no evidence that any problem

existed, thus, this cannot be the purpose of the move — it may very well be a welcomed feature but cannot constitute the object of

the move which I shall attempt to deal with later. Therefore, it seems to me, that it is wrong of the HSE to dress up their real reason

with this slight-of-hand.

11. Clearly, the HSE decided to move Child 1 to Location 2 and little consideration, thought, or reflection went into it and

consequently Child 1 has suffered emotional upset and was troubled so much so to seek the help and assistance of his Guardian ad

Litem. In relation to the substance of Child 1’s concerns, that is, his personal safety in Location 2, whether or not they have a basis

or foundation or whether they are factual or accurate, irrespective, Child 1 is entitled to have these investigated at the very least —

an observation of the HSE that “the Social Work Department have never had issues with Child 1’s’ own safety in County 1, but rather

the level of care his father was providing for him on a daily basis in County 1 due to mental health issues and drug-misuse” does not

adequately or properly address the issue nor allay Child 1’s fears. Clearly, the HSE had made up their mind that they do not nor did

not intend to investigate the present allegations in that they “are to work with Child 1’s parents in the induction plan for Location 2”

regardless. This attitude cannot be proper and just, especially to a child who is refused a voice in matters! The Guardian ad Litem

brought the voice of this child to the District Court and he will be heard and his voice is as important as any because equality before

our Courts is the cornerstone of our judicial process. This sense of equality was articulated by Harper Lee, in To Kill a Mockingbird,

Chapter 20, where she says:

“[b]ut there is one way in this country in which all men are created equal - there is one human institution that

makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein and the ignorant man the equal

of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States

or the humblest Justices of the Peace court in the land, or this honorable court which you serve. Our courts have

their faults, as does any human institution, but in this country our courts are the great levellers, and in our courts

all men are created equal”

12. The GAL is a knowledgeable and learned gentleman of quite a number of years experience in this field of social sciences and I

have no doubt that this application has been brought because of his genuine fears and concerns about Child 1. The GAL in his Report

of 6 May 2009 at paragraph 4.6 states that:

“[u]nfortunately the placement at Location 1 had to be extended on an ongoing basis due to problems with the bed

availability at Location 2 by which stage Child 1 had settled there and developed positive relationships with care

staff. Given these circumstances Child 1 indicated to the writer that he was fundamentally opposed to moving to

Location 2. Child 1 outlined his views on the matter in correspondence to the Court dated 25 January 2009.

Essentially Child 1 felt that his views were not being taken into consideration by the Social Work Department

regarding the proposed transfer to Location 2 and as such he threatened to abscond from this facility should he be

forced to leave Location 1 against his wishes; thereby potentially placing himself at risk within the community.”

13. I do not believe that we can hold Child 1 responsible for the problems in relation to securing a placement in Location 2, but I feel

we can rightly hold the HSE responsible for the desire of Child 1 to now remain in Location 1 and maintain his relationships with staff

and the two residents there. The HSE dragged their feet as there is little evidence, a word to which I shall refer later, to show what

real, genuine, and valid steps the HSE took to seek alternative placements rather than waiting around for a placement to become

available and thereby allowing Child 1 to develop such an undeviating desire to stay where he is. This is a mere preliminary

observation in relation to the criticism which can be levelled at the HSE in the manner in which they concluded an ill-thought out

move in what is a case deficient in magnitude, complexity, and difficulty. It is trite of the HSE to state that “Child 1” cannot dictate

where he wants to stay when the HSE totally dispense with his views as though they do not matter. His voice matters to this court

and ranks higher to that of the HSE given the paramountcy of the child’s position in the Child Care Act. On point, Ms. Kilkelly in

Children’s Rights in Ireland: Law, Policy and Practice (2008, Tottel Publishing) at page 3, “young children can be highly competent,

technically, cognitively, socially, and morally”. It is submitted that the opposition to children’s rights on the basis that they have no

capacity to exercise them ignores the value to children of their recognition as rights-holders. It also allows the duty-bearer to

exercise discretion as to whether to vindicate those rights or not. As Federle (in ‘Rights Flow Downhill’ (1994) 2 International Journal

of Children’s Rights, 343, 344) explains:

“[h]aving a right means the power to command respect, to make claims and to have them heard. But if having a

right is contingent upon some characteristic, like capacity, then holding the right becomes exclusive and

exclusionary: thus only claims made by a particular group of (competent) beings will be recognised.”

Criminality Discovered

14. The child’s unenumerated rights were said by Finlay P (as he then was) in G v An Bord Uachtála (1980) IR 32 to include:

“[a] constitutional right to bodily integrity and ... an unenumerated right to an opportunity to be reared with due

regard to [his or] her religious, moral, intellectual, physical and social welfare. The State, having regard to the

provisions of Article 40.3.1 of the Constitution, must by its laws defend and vindicate those rights as far as

practicable.”

15. Child 1 has a right and entitlement to demand that the HSE observe the protection of his physical and emotional needs. In that

regard, it is noted that The GAL in his Report of 6 May 2009 at paragraph 5.3 et sequentia states that:

“5.3 Child 1 alleged that he found ‘E-Tablets’ under his pillow at Location 2 the previous week and as such he was

opposed to the proposed move to Location 2 on safety grounds. Child 1 said he had disposed of the drugs and

alleged that he had been threatened by the young person/resident responsible [for putting the drugs there]. Child 1

stated that he would abscond if he was forced to transfer to Location 2 under these circumstances … Father

threatened to remove Child 1 from the jurisdiction should his con be forced to move to Location 2 following his

disclosure that he found illicit drugs on the premises. The writer suggested that the planned move be put on hold

pending investigation into Child 1’s claim…

5.6 Child 1 reiterated that he had found approximately 20 ‘E’ tablets under the pillow in his bedroom at Location 2

and alleged that the resident responsible had threatened to ‘slit his throat’ [my emphasis] if he reported the matter

or disclosed his identity to staff. Child 1 described the tablets as white in colour with the letter ‘E’ in the middle and

some yellow tablets the same size. Child 1 said he threw some of the tablets out of the window and he flushed the

remainder down the toilet. Child 1 said he reported the matter initially to his father and subsequently to his social

worker.

5.7 Child 1 said that staff at Location 2 didn’t believe him and he added, ‘Why would I make up such a story, If I

didn’t want to go to Location 2 I would have said so. At first I wasn’t sure about going to Location 2, then I wanted

to go. I’m not going after this’ Child 1 also alleged that drugs were being dealt out of a house in the cul-de-sac

around the corner. Child 1 said he feared the repercussions from the young person involved in Location 2 and as

such his decision was final. Child 1 challenged the HSE’s rationale for moving him back into County 1, stating, ‘I’m

trying to get free from County 1, I like living at Location 1’.

5.8 Representatives from Location 2 and Location 1 were present [at a meeting of 18 March 2009]. Location 2 said

they had investigated Child 1’s allegation of illicit drugs on the premises and found no evidence to substantiate such

a claim. Location 2 did express concern about Child 1’s uncertainty about moving back to County 1 given that he

was settled and well established at Location 1. The meeting acknowledged that regardless of the veracity of the

statements made Child 1 clearly did not feel safe in the locality of Location 2 hence it would be foolhardy to persist

with the move against his wishes for fear of placement-breakdown and the risk emotional/behavioural upheaval. The

HSE agree to re-refer the matter to the Placements Committee as forcing Child 1 would clearly not be in his best

interests.”

Investigation

16. Child 1 was right to challenge the reason and the manner of implementing the move. In relation to the statement of fact included

in what has been, wrongly described as a report on the investigation, it states that: “Location 2 said they had investigated Child 1’s

allegation of illicit drugs on the premises and found no evidence to substantiate such a claim”.

17. I am not surprised that they found no evidence having regard to the atrocious, appalling, and horrendous ineptitude shown in

what can only be described as a very simple issue to investigate events which were reported in a timely manner by the child. I will,

later, return to the matter of the investigation because it is my view, Location 2 failed in its duty of care to Child 1. I quote, “The

meeting acknowledged that regardless of the veracity of the statements made…” if we just look at the phraseology used here, it is a

patronising platitude paid to Child 1 and is thereby reprehensible in the extreme in that irrespective of the question-mark upon the

adequacy of the investigation itself, it was within contemplation of the HSE (at the meeting) to “force” Child 1 to move regardless but

for the consequences which affected Child 1 and these will be set out later. Also, it was outrageous that the court-appointed

Guardian ad Litem was not invited to the meeting having regard to the allegations and the dismissive manner in which they were dealt

with by the HSE, which would have gone unfettered but for this section 47 Application.

18. I must firstly, address the issue of the investigation of the allegations made by Child 1. This is certainly within the remit of the

court in that it was and is a component or at least an element of the section 47 Application before this court. The Child Care

(Standards in Children’s Residential Centres) Regulations 1996, and Article 14 thereof provide that “[a]dequate arrangements should

be made to ensure that the facilities are otherwise sufficiently safe, having regard to the age and maturity of the children housed

there” and accordingly only children suited to the centre, personnel, residents, regime, and environment ought to be placed together.

I have no information of any exercise carried out to establish if Child 1 was a ‘match’ prior to contemplating a move to Location 2. But

it seems to me that given the innocence, simplicity and naivety of Child 1 and what The GAL said was his apparent lack of ‘street-

wise’ tactics, made Location 2 unsuitable for Child 1.

Manner of Investigation

19. In investigating this matter the investigating team “found no evidence to substantiate” Child 1’s allegations. The Acting Manager

of Location 2, who I believe conducted what is purported to be “an investigation” into serious allegations made by Child 1, failed to

appreciate the enormity of the allegation where this child’s life was threatened.

20. I do not believe that the Acting Manager understood what the concept of evidence is. What is evidence in the context of an

internal investigation? It is no different to that which is placed before any legal forum. Evidence is that which tends to prove that

which may be disputed. Essentially, it is that which makes clear or ascertains the truth of a fact on a point in issue or dispute.

Evidential rules are observed for the benefit of all parties to a complaint or, as in this case, an allegation, with the object of providing

consistency in the handling and processes of the investigation and to achieve confidence in this process akin to the administration of

justice but let’s not get hung up on ‘evidence’ rather it was essential that Location 2 find out what happened. They did not do this

because they embarked upon an exercise to show that something could not happen as opposed to finding out what did happen.

21. We do not have to over-complicate our understanding of ‘evidence’ but if the HSE seeks evidence they should at least put in

place those tools which will produce it for them. It is not the place of the HSE to indulge in idle speculations as to what is or is not

evidence when matters of a serious nature present themselves, such as the instant matter.

22. Evidence may take the form of oral accounts, narratives and testimony, documentary proof or the factual context presented by

the case, and can also include CCTV Footage, Logs of Rosters, Records, Diaries, etc. In the main, evidence is either written or oral.

Irrespective of the nature of the evidence, one must adduce sufficient evidence so that the investigator has sufficient material in

order that he or she carry out their function(s) and may have an opportunity of assessing whether such evidence is convincing or

persuasive as to admit the proof of that which is sought to be investigated in relation to the allegation or complaint and thereby

reach a logical, rational and sensible conclusion. If one does not come up to proof, either as regards the production of actual

concrete evidence or as to testifying the veracity of certain matters, then the allegations or complaints must, save in the most

exceptional circumstances, be dismissed and a written report should ensue so as to satisfy all that a proper and meaningful

consideration was given to the allegation or complaint and the decision or conclusion of the investigator can be justified.

23. We come now to the actual investigation, which I must say from the outset fell far short of what this court or Child 1 ought to

expect. Not one document is headed “Investigation”, “Investigation Report”, or “Investigation Account”. The best that Location 2

could do is a documented entitled “Follow-up on Allegations:”. This document contains six bullet-points and in considering these I

make the following observations:

(a) ‘Please see an in-depth report of Child 1’s movements on the day the allegation was made.’ I do not know the

providence of what is included here. I do not know if these movements were put to Child 1 and he asked to provide

an explanation. I do not know of the defects in reporting nor the potential error in recording. It is an oxymoron to

title this document ‘in-depth’ it is anything but in-depth as there are huge imperfections, shortcomings, failings, and

deficiencies in the report concerning movements.

(b) ‘Manager spoke to residents individually regarding alleged incident. The young people denied any knowledge of

incident.’ Now perhaps it might be naïve or even green behind the ears, but anyone conducting an investigation and

expecting to get admissions to conclude matters quickly is on a path doomed to failure. I have not been furnished

with any Statements nor do I know if any Statements were taken; also, I do not know what the manager said to

Child 1 or the residents, either individually or otherwise; I do not know what their responses were, or whether some

or all residents ought to have been probed further or pressed more in relation to the allegations or their responses.

This is basic common sense.

(c) ‘Manager communicated all information regarding this allegation to the Chairperson of Location 2.’ I do not

know what was communicated, whether it was a fair and accurate account of what he had been told, whether this

communication was oral or written, whether the Chairperson understood it or not, whether he left anything out or

understated certain matters, whether or not the manager had the ‘wool pulled over his eyes’, or whether he

attempted to fully get to the bottom of things. Again, one does not have to be an astrophysicist to appreciate the

obvious rudimentary steps that should have been taken.

24. The document continues in the following terms:

(d) Information faxed to the Monitoring Officer.

(e) Also all information was communicated and faxed to Social Worker 2 and this information was communicated to

the Alternative Care Manager.

(f) The Chairperson of Location 2 spoke to the Child Care Manager, regarding this incident as well.

25. What is clear is that Location 2 did not investigate this matter in any adequate or acceptable fashion and they had the temerity,

or impertinence to state that:

“[i]t is most alarming that this allegation has been made as it puts at severe risk a young boy who is in doubt as to

whether he wishes to move into Location 2 at this time. However, upon analysis of the day in question and further

examination of our current residents and their presenting behaviours it seems most unrealistic that someone would

enter Child 1’s room and hide drugs under his pillow.”

26. I cannot accept that the management of Location 2 really feels, as they seem to indicate, that they took this incident seriously

or that they were in any way ‘alarmed’. They implicitly suggest that Child 1 is making it up. This is a most serious effort to undermine

this young boy and his account of the incident so as to excuse the negligence of Location 2 in the manner of handling the

investigation. Location 2 say that “upon analysis of the day in question”. I have no proof whatsoever of any analysis having been

conducted and if so conducted I have no knowledge of the material subjected to the alleged analysis. Location 2 would not believe

Child 1, so why should I believe them? I do not accept the theory that “it seems most unrealistic that someone would enter Child 1’s

room and hide drugs under his pillow” because, off the top of my head, I could come up with possible explanations: clearly this bed

was unused and that it may in the past or at some time been a safe place to hide drugs in that it may not have been subjected to

inspection nor cleaning, etc. The bed in question may not have been subject to observation and it may very well have facilitated and

assisted persons wishing to conceal matters or deceive people in authority.

27. In the instant case we have a most serious incident. The allegation was two-fold:

(a) it is alleged that illegal drugs were being stored on the premises, and

(b) the life of a child was threatened.

28. Both of these allegations are of the most serious allegations necessitating a proper and appropriate investigation — we are not

told if this incident was or has been reported to An Garda Síochána. Only a properly experienced person should have been designated

to conduct the investigation. The Children First, National Guidelines for the Protection and Welfare of Children, September 1999, at

paragraph 14.7.1 provides that:

“[s]pecialist training is required for selected health board staff and members of An Garda Siochana who will be

involved in the joint investigation of cases and subsequent intervention … The aim of the training is to enable

members of each service to understand fully each other’s role, to learn how to work together on a joint basis, and

to learn how to interview children”.

29. This investigation, given the gravity of the allegations, ought to have been at a standard akin to a criminal investigation. I rest

this proposition upon the dicta of Barron J in Flanagan v UCD [1988] IR 724, wherein he suggested that the procedures in respect of

serious matters should be: “[c]learly … a charge … as such the most serious … possible … In my view, the procedures must approach

those of a court hearing…”.

30. Therefore, the basic procedure would be firstly, to set out what is to be investigated so that one has a clear idea of the nature

and scope of the inquiry: see Children First, National Guidelines for the Protection and Welfare of Children, September 1999, at

paragraph 4.5.1 for an example of Report Format. It is a prerequisite to any investigation that such an investigation should have

regard to all the facts, issues, and circumstances surrounding a complaint or allegation. The graver the allegation, the greater the

formality that should be used in conducting the investigation. A court cannot decide on arbitrary measures to deal with matters. The

expertise of a court lies in its ability to hear all sides of the case, to determine issues of fact, and to make a firm decision on a

particular issue at a particular time, in accordance with the applicable law. It cannot initiate action to provide for the child, nor can it

deliver the services which may best serve the child’s needs. It is arguable that only if it were given the power to choose the precise

placement of the child and the resources to ensure that a sufficient range of placements was made available, could a court

realistically be given the function of undertaking regular reviews: see In re G [2006] 1 AC 576 at 594 and also it states that:

“[i]t is not only important that the reviewing body should itself have the power to deliver the care which it

considers best for the child: it is also necessary that the body with day to day responsibility for the child should

have a positive duty to ‘take a grip on’ the case and make firm and early decisions without the temptation to pass

responsibility to another body.”

31. The Child Care Act, 1991 and proceedings there under are essentially investigative and non-adversarial in character, a feature

clearly derived from the parens patriae jurisdiction of the court in wardship: see In re L (A Minor) (Police Investigation: Privilege)

[1996] 2 WLR 395, 401B-402B and L, Petitioners (No. 1), 1993 SLT 1310.

32. The investigative role of the court is an essential corollary of its duty to promote the protection and welfare of the child

concerned. Thus, the court may make orders and reach conclusions and require inquiries independently of any outcome sought by the

parties, but before so doing it must have before it adequate and sufficient information to enable it reach a proper decision. It is not

the parties who determine the issues for adjudication or the evidence to be placed before the court but the court itself, however,

before the court can determine issues sufficient and adequate inquiries must be carried out by the agency whose job it is to do so.

33. The child who makes a complaint should be interviewed in accordance with the provisions of Children First, National Guidelines for

the Protection and Welfare of Children, September 1999, at paragraph 8.12 (and section 9); thus, the first thing is to reduce the

complaint or allegation to writing, read it over to the child, ask if anything is to be added, corrected or amended, look for all essential

details, location, times, environment, people present, possible witness, corroboration, etc., and, most importantly, show the child that

you are taking the matter serious. None of these basic techniques of investigation were utilised in the instant matter. The crux of this

case surrounds the flawed investigation of the matters complained of and the conclusions that were reached by the Location 2 staff

having conducted the flimsiest inquiry and thereby concluded that Child 1 was making it up destroying Child 1’s confidence in the

system. At no stage did the inquiry team go back to Child 1 and discuss their results; this is and was a major defect compounding its

flawed investigation.

34. The investigation was neither, full, fair, nor reasonable. I agree with the Guardian ad Litem that given the detail with which Child

1 recounted the incident Location 2 ought to have provoked a proper investigation, in that Child 1, at the very least, had raised a

suspicion of unlawful conduct, in that the suspicion was well founded by the preponderance of evidence, if it is made to appear more

likely or probable in the sense that actual belief in its truth, that is the allegation, derived from the evidence (e.g., the information

furnished, colour of tablets, ‘E’ on tablet, window present to get rid of the tablets, no previous history of making false allegations,

etc.), exists in the mind of those who were investigating the incident and consequently they ought to have carried out a full,

thorough, and proper investigation. This is the balance of probability standard which means that a court is satisfied an event occurred

if the court considers that, on the evidence, the occurrence of the event was more likely than not. It seems to me, the investigation

team held that “there is no evidence” because they did not embark upon an exercise to gather or compile such evidence. In the

absence of being caught red-handed Pollock, Chief Baron, in R v Exall (1866) 4 F & F 922 at 929, suggested:

“that circumstantial evidence is to be considered … more like the case of a rope comprised of several cords. One

strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite sufficient

strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of

which would raise a reasonable conviction (that is, belief) or more than a mere suspicion; but the three taken

together may create a conclusion of guilt with as much certainty as human affairs can require or admit of.”

35. I do not believe that the management of Location 2 took Child 1 seriously at all, in fact, they simply did not believe him. The HSE

hold themselves out as the experts in assessing behaviour and conduct of parents and that they are adequately skilled in conducting

assessments and investigations into such. Furthermore, Location 2 in conducting what they maintained was an investigation implicitly

declared their authority in conducting an investigation into Child 1’s allegations, yet Location 2 failed Child 1 and the HSE failed Child 1

in that regard. The breach of duty here is along the parameters set out in O’Rourke v An Post and Anor (Circuit Court, 27 July 2000;

see McMahon & Binchy’s Law of Torts, 3rd edn., page 989) where McMahon J. held that: “[o]nce An Post commenced its

investigation, it owed a duty to its employee to carry it out carefully and in a reasonable professional manner. In this it failed and I

hold that it was in breach of its duty to the plaintiff in this regard.”

Affect on Child 1

36. I am convinced that the conduction of the alleged investigation was a breach of the duty owed to Child 1 and a breach of the

implied obligation of good faith, in the manner in which they dealt with his allegation and this has resulted in Child 1’s distrust of the

HSE. How has this manifested itself? The manner, approach, and comportment of the investigation has severely affected Child 1 and

the Guardian ad Litem stated that on 23 March 2009:

“5.9 Staff at Location 1 sought clarification regarding Child 1’s onward care arrangements as the continuing

uncertainty was impacting negatively on his emotional and behavioural presentation. Child 1 had a difficult access

with his mother on 21st March 2009; he was verbally and physically threatening towards staff on his return … Child

1 also threatened to hang himself using a belt and as such he was put on constant observation. Child 1’s mood was

low and he refused to attend school. According to staff Child 1 said he didn’t know where he was going to go in the

future and he presented as confused and withdrawn. As referenced in previous reports prepared in relation to these

proceedings Child 1 is settled at Location 1 and these behaviours are out of character…

5.10 Further concerns reported in relation to Child 1’s mood following a report from the Social Work Department that

the HSE were considering another placement. Child 1 reported that his Social Worker had reassured him that he

wasn’t moving from Location 1 for the time being however the unit in F was being considered as an onward care

placement. Staff at Location 1 advised the writer that Child 1 had hoped he would remain in Location 1 on a long-

term basis or until such times as his father had addressed his addiction problems. Child 1 return from school earlier in

the day complaining of a stomach upset and stating that his head was ‘all messed up’. Staff said that Child 1 felt his

Guardian ad Litem was listening to him.

5.11 Child 1 suspended from school for two days due to poor behaviour (26th March 2009). Significant event

reported; Child 1 refused to return to Location 1 following access with father, verbally aggressive and threatening

towards staff … Child 1 eventually returned to Child 1 and behaviour stabilized around 9:00 pm. He later told staff

that his social worker had told him he was going to visit the aforementioned unit.”

37. The GAL allayed the fears of young Child 1 and (at paragraph 5.12)

“[a]dvised Child 1 not to worry about his placement needs or the prospect of being moved against his wishes as the

adults and professionals in his life would make the right decision taking into consideration his wishes and feelings on

the matter. In addition the writer would brief the Court about any proposed change in Care Planning. Child 1

reiterated that he wished to remain at Location 1 and he had apologized to staff for the recent deterioration in his

behaviour.”

38. The deterioration in Child 1’s behaviour is as a result of the unfair and arbitrary manner in which the HSE have approached his

placement. They, that is the HSE, had clearly flagged to Child 1 that they do not care about him. Accordingly, a serious breach of

duty occurred in a manner likely or intended to materially or significantly damage the relationship of confidence and trust underpinning

the duty of care of Child 1 by the HSE and he now questions whether or not the HSE has his best interest in mind at all and one is

pressed to ask what does the duty to act fairly require in the circumstances of this case. This I shall address a little later but the

Hippocratic adage springs to mind “we can with humility define our task as: To cure sometimes, to relieve often, to comfort always.”

39. Had the Location 1 placement broken-down as a result of Child 1’s behaviour which was a retaliation to the indifference shown to

him, I feel that the HSE might have being facing a different case in a different forum. To conclude this aspect of my decision, I have

looked at the consequences flowing from the flawed investigation and I now must address the so-called ‘plan for change’.

Planned Change

40. In Paul Brearley’s Admission to Residential Care (Tavistock Publications, 1980) at page 104, it is emphasised that certain

elementary and basic work is undertaken to ensure a successful placement; we are advised that:

“[t]he necessity for admission to residential care places a child at risk in that he is exposed to the danger of

permanent damage in consequence of hazards likely to be encountered during the process itself, and afterwards.

These hazards compound those already negotiated as part of his life so far. We know too that artificial group living

can be hazardous and that the child remains at risk in the institution. The way the admission process is handled

through it various stages, and subsequent field and residential work practice, can either increase or decrease the

likelihood of damage; thus informed and sensitive hazard management by all those receiving the child into care will

be vital.”

“[I]nformed and sensitive hazard management by all those receiving the child into care will be vital” and yet, in the instant case,

there exists no plan whatsoever in respect of the HSE’s intended move of Child 1. The present Application before this court arises

from the intention of the HSE to move Child 1 from Location 1 and place him in a new placement called ‘Location 2’. Attached to this

decision is a copy of the Children’s Booklet for Location 2 and I am not sure if this had been circulated to all relevant parties. The

Guardian ad Litem has initiated this Application because he does not believe that it is in the best interest of Child 1 to move now and

also he was highly critical of the manner in which the HSE was prepared to move Child 1.

41. In the case of Eastern Health Board v Judge McDonnell [1999] 1 IR 74, McCracken J. held that:

“[i]n my view s. 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 part of

the Act dealing with ‘Children in the Care of Health Boards’, and is not qualified in any way. I think the only

reasonable interpretation of s. 47 is that it is intended to give the overall control of children in care to the District

Court. This is not to say that the District Court should interfere in all day to day decisions made by a health board,

but rather that whenever any matters of concern are brought to the attention of the District Court, which could

reasonably be considered adversely to affect the welfare of the child, and only in such circumstances, should the

District Court interfere.”

42. Accordingly, the Guardian ad Litem was right to bring this matter to the attention of the Court; otherwise I am sure that Child 1

would be a very unhappy child forced to submit to the will of the HSE and the Court would be oblivious of the process of the intended

change of placement.

43. On or about 2 April last, I asked to see the Change of Placement Plan and it was intimated that no actual written plan was in

place but that one would be drafted and furnished to the court on the next occasion. The HSE were forced into drafting a plan and

that plan is dated 20 April 2009. No plan existed prior to this for the reason I say that a plan can only exist if it is reduced to writing

because unlike a contract, which can be oral, a plan, for reasons set out hereinafter, cannot exist in ‘the minds of people’ nor be the

subject of an oral agreement, but reduced to clear written terms. One would not contemplate a Care Plan being in any other format

than one that is reduced to writing.

44. To bring about “change”, one must have a plan. Furthermore, the European Court of Justice in Hokkanen v Finland (1994) 17 EHRR

239, at para 58, has clearly spelled out that any change, for example, of placement, must be the subject of planning and the court

held that:

“an obligation cannot be absolute and may require preparatory measures being taken where a child has lived with

others for some time. The nature and extent of such preparation should depend on the circumstances of the case,

however, and while domestic authorities must do their utmost to facilitate such co-operation: ‘any obligation to

apply coercion must be limited as all interests and rights (particularly of the child) must be taken into account.’”

(See Kilkelly’s Children’s Rights in Ireland: Law, Policy and Practice, at page 157.)

45. I have before me a documented purporting to be such a Plan dated 20 April 2009 in respect of a Change of Placement. This

‘induction plan’ has two columns. One column is headed ‘Timeframe (2 weeks)’ and the other column is headed ‘Action’. The said

‘induction plan’ has seven temporal rows indicating certain pieces of work to be achieved and it is signed-off by Social Worker 1. How

Social Worker 1 came up with two weeks is a mystery to me because the timing of any move should be sensitively handled: see

Children First, National Guidelines for the Protection and Welfare of Children, September 1999, paragraph 8.9.4. (ii). The so called

‘induction plan’ does not shown appropriate timing or sensitivity.

46. A ‘plan’, as I understand it, is a thought out, structured, and considered strategy to achieve some objective. Therefore ‘planning’,

a verb, is simply creating and maintaining a strategy coupled with the psychological process of thinking about the activities required

to create a desired goal or objective. The purpose or reason for the plan ought to be known clearly and unambiguously so as to be

obvious and assist in considering the pieces of work necessary and timescale involved to successfully achieve one’s objective. As

such, it is fundamentally an exercise in ‘intelligent behaviour’ demanding the necessary skill, knowledge and experience. One should

not attempt it (‘planning’) unsupervised if one has not the necessary skill and knowledge base because this ‘thought process’ is

essential to the creation and refinement of a plan-of-action, or integration of it with other plans, that is, it combines all possible

outcomes, possible faults areas of difficulty and sensitivity as well as the forecasting of outcomes/developments with the preparation

of scenarios of how to react to them to include the concept of ‘revision’ to permit necessary pieces of work gel with a changing

environment.

47. The term ‘planning’ is also used to describe the formal procedures used and adopted in such an endeavour, such as the creation

of flowcharts, manuals of instruction, templates and precedents, documents, and diagrams. It will inevitably require meetings,

consultations, and get-togethers to discuss the important issues to be addressed and how to be addressed, the objectives to be

met, the people who are to be involved, and the strategy to be followed to include the manner of dealing with difficulties and pitfalls.

48. One needs to be prepared for what may lie ahead, which may require contingencies and flexible processes to ensure successful

planning in a dynamic and changing environment in that future decisions are shaped by consequences of our planning and the actions

taken thereunder. The basic essentials of planning must be subject to a regulated approach, which incorporates preparation,

development and arrangement of raw material in a manner conducive to the object wished to be achieved. Planning is not done off-

hand, it results from preparation and careful extensive research.

49. Planning is a process for accomplishing purpose, for example such planning is obvious in devising a ‘Care Plan’ for a particular child.

It is a blueprint for charting a successful course through difficult waters and a road map of development or achievement in the life of

the child who is subject to the plan in a general sense. Day-to-day matters or routine matters not presenting complexity or difficulty

do not require the process of planning but in most cases planning helps in deciding objectives both in quantitative and qualitative

terms placing likely timeframes upon achievement. It is the setting of goals on the basis of objectives and keeping in view the

resources necessary and the optimum use thereof. Generally, but not always, a plan ought to involve the following:

1. The purpose or reason for the goal, objective, or target which is the subject of the Plan.

2. Clearly define the target/goal in writing.

3. Set by a person having authority and the necessary skill, knowledge, and training.

4. The goal should be realistic, attainable and possible.

5. It should be specific.

6. Acceptability.

7. Capacity and/or results ought to be easily measurable.

8. Identify all the main issues which need to be addressed and these should be laid out for all affected parties to

see and consider.

9. Review history, past difficulties or performance, etc.

10. Decide finance, funding and/or budgetary requirements.

11. Focus on matters of strategic importance before narrowing-in on detail.

12. What are needs or requirements and how will they be met?

13. What will be the likely length of the plan and its structure?

14. Identify shortcomings in the concept and gaps.

15. Strategies for implementation.

16. The manner and time of “Review” which ought to be done regularly or periodically.

50. The document entitled “Induction Plan” with its two columns and seven rows cannot be described as any sort of plan at all. Its

deficit of detail, preparation, and structure is a failing and no one could have any confidence in this “Induction Plan” succeeding. It

appears that I am highly critical of what has been done here. I justify my criticism on two grounds. Firstly, the affect that the

behaviour and conduct has had on Child 1 and secondly, ‘planning’ is a rudimentary concept within the behavioural sciences, of which

Social Work Practice is a discipline. Social sciences are the very experts who have defined the concept of ‘planning’, ‘effort’, ‘change’,

etc., and what has been offered here as a plan falls far short of what a person would minimally expect [see Lewin, K. (1951) Field

Theory in Social Science, published by Harper; Schein, E.H. (1964) The Mechanisms of Change, in Bennis, W.G., et al (eds)

Interpersonal Dynamics (1964) published by Dorsey Press; Chin, R. & Benne, K., General Strategies for Effecting Changes in Human

Systems, in Bennis, W.G., et al, The Planning of Change (3rd edn.) (1976), Holt, Rinehart & Winston.]

51. In the absence of a ‘plan’ the HSE were prepared to move Child 1 to Location 2 and ‘following a report from the Social Work

Department that the HSE were considering another placement in County 1 it appears to me that the HSE has not complied with the

regulations laid down protecting this child.

Decision

52. The HSE, by virtue of their statutory position, are placed in the shoes of the parent by the State and thus are compelled to

adhere to the obligations which are expressed or implied by the Child Care Act, 1991. Section 24 of the Act of 1991 is in the following

terms:

“[i]n 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.”

53. It is a function of the District Court to ensure that the HSE comply with its duty and obligation to the child under the Child Care

Act, 1991. In A & B v Eastern Health Board [1998] 1 IR 464, at page 477, Geoghegan J stated that:

“[t]he District Court is a court established under the Constitution. Its judges are sworn in to uphold the

Constitution. In relation to every matter that a District Court Judge decides, he or she must always be conscious of

the Constitution and rights under it. The only constitutional area in respect of which there is no jurisdiction in the

District Court is the question of the validity of any statutory enactment having regard to the Constitution. That

function is peculiarly reserved to the High Court or on appeal to the Supreme Court. But every other area of the

Constitution comes within the province of both the District Court and the Circuit Court in the carrying out of their

ordinary jurisdiction … with the regular experience of dealing with children and their welfare, [the District Court

Judge] may well be better equipped than a judge of the High Court.”

54. Where the State, by virtue of the acts of the HSE, deprives a child of his or her family life and confines him or her in an

institution, foster care placement, or whatever, there is an obligation upon the Agencies of the State to ensure as is reasonably

practicable as well as to take all reasonable and appropriate steps to guarantee that the child’s life, will experience the minimum of

danger, peril, or risk and that the environment is safe and conducive to the child’s welfare. Section 36 of the Child Care Act, 1991,

provides that:

“[w]here a child is in the care of a health board, the health board shall provide such care for him, subject to its

control and supervision, in such of the following ways as it considers to be in his best interests—

(a) by placing him with a foster parent, or

(b) by placing him in residential care (whether in a children's residential centre registered under Part

VIII, in a residential home maintained by a health board or in a school or other suitable place of

residence), or

(c) in the case of a child who may be eligible for adoption under the Adoption Acts, 1952 to 1988, by

placing him with a suitable person with a view to his adoption, or

(d) by making such other suitable arrangements (which may include placing the child with a relative) as

the health board thinks proper.”

55. In North Western Health Board v HW & CW (unreported, Supreme Court, 8 November 2001) (hereinafter the NWHB case), the

Supreme Court set out the respective provisions of the Constitution, and emphasised that Article 42.5 provides that:

“[i]n exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the

State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents,

but always with due regard for the natural and imprescriptible rights of the child.”

56. Therefore, if the State ‘supplies the place of the parents’, it must ordinarily act in the best interests of the child. The Supreme

Court singled out the special position children have (notwithstanding a view that the Constitution needs to be more ‘Child-Friendly’)

they went on to say that:

“[t]hese articles are described in Kelly on The Irish Constitution, 3rd Ed. p.991 as ‘among the most innovatory in

the entire Constitution’. The learned editors also comment that the articles are generally thought to have been

inspired…by Catholic teaching…and the State’s special protection, of marriage and motherhood, as well as of

parents’ rights and duties…What is beyond argument is that the emphatic language used by the Constitution in

Article 41 reflects the Christian belief that the greatest of human virtues is love which, in its necessarily imperfect

human form, reflects the divine love of the creator for all his creation. Of the various forms which human love can

take, the love of parents for their children is the purest and most protective, at least in that period of their

development when they are so dependant on, and in need of, that love and protection. I believe that Article 41,

although couched in the language of ‘rights’, should not be seen as denying the truth to be derived from the

experience of life itself, that parents do not pause to think of their ‘rights’ as against the State, still less as against

their children, but rather of the responsibilities which they joyfully assume for their childrens’ happiness and welfare,

however difficult the discharge of those responsibilities may be in the sorrows and difficulties almost inseparable

from the development of every human being. The rights acknowledged in Article 41 are both the rights of the family

as an institution, and the rights of its individual members, which also are guaranteed in Article 42”.

57. In coming to the conclusion that the rights of the Child are paramount, as provided for in the legislation, the Chief Justice quoted

PW v AW and stated that:

“[t]he family as a concept is, of course, meaningless divorced from the individuals of which it is composed. This

leads to an important consequence in the context of the present case identified in the following passage from the

judgment of Ellis J. in P.W. .v. A.W. (unreported); (judgment delivered 21st April 1980):

‘In my opinion, the inalienable and imprescriptible rights of the family under Article 41 of the Constitution

attach to each member of the family including the children. Therefore in my view the only way the

‘inalienable and imprescriptible’ and ‘natural and imprescriptible’ rights of the child can be protected is by

the courts treating the welfare of the child as the paramount consideration in all disputes as to its

custody, including disputes between a parent and a stranger. I take the view also that the child has

the personal right to have its welfare regarded as the paramount consideration in any such dispute as

to its custody under Article 40.3 and that this right of the infant can additionally arise from ‘the

Christian and democratic nature of the State’’”.

58. Article 41.1 was further considered by the Supreme Court in In Re Article 26 of the Constitution and the Adoption (No. 2) Bill,

1987 [1989 1 IR 656. Giving the judgment of the court, Finlay CJ, states that:

“Article 42, s. 5 of the Constitution should not, in the view of the court, be construed as being confined, in its

reference to the duty of parents towards their children, to the duty of providing education for them. In the

exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means

shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental

duty to educate but also the parental duty to cater for the other personal rights of the child.”

59. The personal rights referred to in that passage would obviously include the express rights of the child as guaranteed by Article

40.3, together with the unenumerated rights also protected by that Article; accordingly, the child has a right to have his or her views

assessed and given an opportunity to be heard and reasons for the ultimate decision of the Agency, that is the HSE ought to be

relayed to the child: see Bronda v Italy (unreported, European Court of Human Rights, 9 June 1998).

60. It seems to me that the placement issue, albeit addressed somewhat casually by the HSE in the instant case, clearly has what I

would call a “hybrid-parenting” function comparable to that of the family. Given that it is accepted that rudimentary accommodation

is one of the most basic needs of humans (as espoused by classicists such as Maslow, Alderfer, Herzberg, McGregor, and McClelland

in evaluating ‘content theories’ and physiological needs), it must undoubtedly represent an important task for the HSE. A child who is

subject to ‘placement’ is entitled to expect that it is an experience, on par with that expected from a family type unit given that the

agency is expertly skilled and trained in such placements and so any such placement ought to meet the characteristic and individual

needs of the child. Such a family type unit could be classed as a ‘substitute family’ and any placement in care should also be

conducive to the safety of the child and the child has to feel safe there, and, such provisions of care and comfort ought also to be

present in abundance. Under these conditions, a child who has that intimate care and attention of a family type unit, will at least,

develop into a whole and rounded person adapting sensitively and confidently to the placement. Most children coming into care are

likely to be already disadvantaged and the degree of impairment ranges from mild to socially deprived, backward intellectually or

educationally, and disturbed emotionally – and even more vulnerable to permanent damage – it will not be sufficient for residential life

to provide simply good physical care; if that is all there is then any positive gain is likely to be limited: Pringle, The Needs of Children

(Hutchinson 1985).

61. Placement change exposes a child to further experience loss; such exposure should be warranted and justified having regard to

what Peter Marris (Loss and Change, 1974, Routledge and Kegan Paul) the impulse to defend the ‘predictability of life’ as a

fundamental and universal principal of human psychology. Change can evoke grief, anguish and heartache for a young child who is

forced to experience further adjustments to an already alien environment.

62. I have, above, sketched out the main factors to be taken into account when considering the ‘change of placement’ of a child. It

is now incumbent upon me to apply these principles to the instant case.

63. Change is an inevitable feature of life, but this court cannot accept the proposals of the HSE in this case. The reasons have been

set out above and I believe that any change in placement concerning Child 1 is unlikely to happen in less than three months and only

then if certain matters are taken on board. Any change that is contemplated will have to be sanctioned by this court having regard to

the behaviour and conduct of the HSE in this case to date. Also, although not a feature of the so-called ‘induction plan’ the Guardian

ad Litem must sanction any change of placement before this court will permit same to be implemented. Accordingly, The GAL must be

involved in the planning and implementation of any change.

64. I believe that certain measures are necessary to successfully plan for change. Change, dependent upon planning, in its broadest

sense is a structured approach to transitional arrangements from a current state to a desired future state. Kurt Lewin in Field Theory

in Social Science (1951) developed a three-stage plan to changing behaviour which was adopted and elaborated by E.H. Schein in

The Mechanisms of change (1964). The approach is to (a) unfreeze present situation, (b) change the situation, and (c) refreeze the

situation. Applying this to the instant case would involve the following:

Unfreeze

(a) Given the manner in which Child 1 has been dealt with, it is necessary to regain the trust and confidence of

Child 1 and certain work will have to be put in place to achieve this. I am not sure what measures are to be put in

place to gain Child 1’s trust nor how long this will take but it is likely to take at least six to eight weeks.

(b) In tandem, and with the help and assistance of the Guardian ad Litem, the HSE can look at the Location 1

situation. In order to change young Child 1’s mind, it will be necessary to spell out the actual characteristics of the

place:

(i) the existing residents, two in number, will not be there forever. So Location 1 itself will not remain

the same and this should be explained to Child 1, thus, Child 1’s expectation ought to factor this into

the equation;

(ii) work with Child 1 in respect of possibility of separating from Location 1;

(iii) the advantages of widening one’s circle of friends out side of Location 1 and that Child 1 is the most

important person in the scheme of things.

(c) Slowly introduce the intended placement, for example Location 2, in a peripheral manner. One thing did strike me

and that is that no where in the Location 2 Booklet is there a reference to religion. This may need to be looked into.

Change

(a) Agree a strategy, that is HSE and Guardian ad Litem, to explain fully the advantages of introducing Location 2

and same could be along the lines of the induction plan but would, in my opinion, take about three to four weeks;

(b) Child 1 should know a little about the residents of Location 2 prior to any implementation of a plan and informal

gatherings are ideal for this, for example if a party is happening Child 1 might be invited, he might bring little

tokens/gifts with him for each resident which will foster a genuinely good reception all round;

(c) An assessment of Child 1’s reaction and steps/actions to take to address any fears which Child 1 may have.

Establish what pieces of work is yet to be complete to effect change and execute same.

Freeze

When it is deemed timely and appropriate and at a pace which will allow Child 1 to have confidence in the move, a

plan for same ought to be agreed by both the HSE and the Guardian ad Litem.

65. The above is a suggested way forward; that is all I can offer. I do not have the knowledge nor experience to devise a plan of

change and therefore, will be guided by the experts on this matter. It would be remiss of me if I failed to say that Child 1 cannot be

moved from Location 1 without a Direction from this Court.

66. I do not think that I have to address the issues of the delay in securing a placement, the attachment Child 1 formed to Location

1, whether the placement developed from temporary to permanent, Child 1’s expectation, etc.

67. One matter which I must deal with, as it was a matter addressed by the HSE at the Submissions stage, and that is the subject of

Finance and/or Funding. It was submitted to this court that Location 2 is available and is considerably less inexpensive and so on the

basis of The Health Act, Part II, section 7 and in particular section 7(5) the HSE are obliged to use resources effectively and thus this

justifies the move in the manner outlined in the so-called ‘Induction Plan’. I cannot agree with this proposition because the HSE are

the authors of the present state of affairs which Child 1 finds himself in.

68. Moreover, the Supreme Court in The Health (Amendment) (No. 2) Bill 2004 [2005] 1 IR 105 at page 206 stated that:

“[w]here a statutory measure abrogates a property right…and the State seeks to justify it by reference to the

interests of the common good or those of general public policy involving matters of finance alone, such a measure,

if capable of justification, could only be justified as an objective imperative for the purpose of avoiding an extreme

financial crisis or a fundamental disequilibrium in public finances.”

69. Therefore, there is no justification for the argument in respect of finance having regard to the unique features of this case, and

accordingly I reject them.

That concludes my decision.