D O'H -v- H S E [2007] IEHC 175 (19 February 2007)

D O'H -v- H S E [2007] IEHC 175 (19 February 2007)

The consent of both parents, including a non-marital father who is a guardian, is required under Section 4(2) of the Child Care Act 1991 for the lawful voluntary placement of children in care. The applicant did not give such consent, so the statutory requirements were not met. However, immediate release of the children is not ordered due to their current welfare and the need for further court determination.

Citation
[2007] IEHC 175
Parties
Applicant: D O’H; Respondent: HSE; Notice Party: T H
Jurisdiction
Ireland
Judgment Date
19 February 2007
Procedural Posture
Habeas Corpus / Child Care / High Court Judgment on Article 40.4 Application
Outcome
No immediate release; children to remain in foster care pending further court determination.
Legal Topics
Habeas Corpus, Guardianship of Infants, Child Care Act 1991, Interpretation of 'custody', Voluntary Care, Parental Consent, Constitutional Rights of Non Marital Fathers
Constitutional Law Family Law Child Law Human Rights Habeas Corpus Guardianship of Infants Child Care Act 1991 Interpretation of 'custody' +3 more

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Parties

D O’H

Applicant

HSE

Respondent

T H

Notice Party

Procedural Posture

Habeas Corpus / Child Care / High Court Judgment on Article 40.4 Application

Legal Issues

  1. 1 Whether the Health Service Executive lawfully detained the children under Section 4 of the Child Care Act 1991 without the consent of both parents
  2. 2 Whether 'parent having custody' in Section 4(2) includes a non-marital father who is a guardian
  3. 3 Whether the applicant's lack of consent rendered the children's detention unlawful under Article 40.4 of the Constitution

Ratio Decidendi

The consent of both parents, including a non-marital father who is a guardian, is required under Section 4(2) of the Child Care Act 1991 for the lawful voluntary placement of children in care. The applicant did not give such consent, so the statutory requirements were not met. However, immediate release of the children is not ordered due to their current welfare and the need for further court determination.

Court Disposition

No immediate release; children to remain in foster care pending further court determination.

Orders

  • Health Service Executive to prepare a welfare report on all three children within ten days.
  • Matter to be listed for mention after welfare report is furnished.