This report provides a snapshot of ten cases involving children and young adults who came before the President of the High Court in relation to wardship proceedings. Six of the ten reports concern applications made by the Child and Family Agency to have the person made a Ward of Court, the remaining reports concern reviews of young Wards.
The ten cases concern five young women and five young men. At time of the hearing, several of the applicants were still minors, approaching their eighteenth birthday. In nine of the ten cases, the young person was either in the care of the Child and Family Agency (CFA) or had been in their care and was now in aftercare. In the remaining case, the young man was in a residential disability service. One of the ten young people was also now a mother herself. The HSE disability and mental health services were involved in many of the cases.
The children and young people had a range of complex needs which made them very vulnerable. These included issues with capacity, limited capability to manage money or their own affairs and disabilities including mental health difficulties and mild to moderate learning difficulties. Some were described has having attention deficit hyperactivity disorder (ADHD), Autism Spectrum Condition, epilepsy and an intellectual disability. Two of the young people were non-verbal and had significant physical health needs.
The High Court, under its inherent jurisdiction, may make a child (minor) or an adult a Ward of Court. The process and rationale for taking a person into wardship differs between a child and an adult. Wardship in respect of minors may be used to protect a child’s property interests or to protect the child’s welfare. It may also be employed where statute law is insufficient to meet the welfare needs of the child. It may permit a child to be detained.
In the case of an adult, the proceedings are concerned with protecting an adult of unsound mind (referred to as lunatics). A new statutory regime will shortly be introduced. Once fully commenced, the Assisted Decision-Making (Capacity) Act 2015 will replace the Lunacy Regulation (Ireland) Act 1871. The 2015 Act will allow for the appointment of people to assist those whose capacity is limited with the management of their affairs, allowing the affected individual varying levels of input into the decision-making, depending on their level of capacity. A review is planned of all existing Wards to transition them to the new system over a three-year period.
The 2015 Act only applies to adults so children will continue to be made Wards under the High Court’s inherent jurisdiction. The Joint Committee on Children, Equality, Disability, Integration and Youth recommended that the 2015 Act should be amended to include provisions for 16- and 17-year-olds to make decisions about their healthcare treatment, including mental health treatment. However, the Assisted Decision-Making (Capacity) (Amendment) Bill 2022, which passed all stages in Dáil Éireann in June 2022, does not include any such provision.
We publish below some examples of the cases of children and young people coming before the High Court’s wardship list.
[A] Girl leaving care of the Child and Family Agency admitted to wardship
The President of the High Court made a declaration to admit a young person, who was leaving the care of the Child and Family Agency because she was 18 years old, to wardship.
This matter concerned an application by the Child and Family Agency (CFA) regarding the young person, who had been in the care of the CFA for some time. The girl had been diagnosed with attention deficit hyperactivity disorder (ADHD) and had moderate learning difficulties. The CFA had made an application to admit her to wardship.
Initially, the young person had made objections and counsel had been retained to represent her. Counsel for the young person informed the court that these objections had been withdrawn and she now agreed with the application.
The girl’s mother was deceased. The young person had lived with her uncle, but this placement had broken down. She had been placed in a residential unit and this placement was secure for the foreseeable future. Neuro-psychological assessments and occupational therapy assessments had been recommended but these had not yet commenced. The young person’s psychiatrist had stated she would review and complete a further report for future planning once these assessments had been completed. The President noted that this review by the young person’s psychiatrist was immensely helpful.
The President made a declaration and admitted the young person into wardship. As there were no family members who would be able to function as committee, the general solicitor was appointed to function as committee of the person and estate. As no detention orders were required no review date was set, but the President gave liberty for the general solicitor, as committee, to apply to the courts if it was needed.
[B] Medical visitor appointed to make inquiries as to soundness of mind of a teenager about to leave care
The High Court appointed a medical visitor to make inquiries as to the soundness of mind of a teenager in care who was approaching his eighteenth birthday, with a view to making him a Ward of Court. The Child and Family Agency (the CFA) brought the application. The judge also made other orders which included the appointment of a guardian ad litem (GAL), that the teenager be fully informed of the application and be invited to attend the next hearing to be heard himself, that the teenager’s aunt who was his current carer be informed and the Health Service Executive (HSE) be joined as a notice to party to the application.
Counsel on behalf of the CFA said the agency had made this application with a view to making the teenager a Ward of Court when he left the care of the CFA at the age of 18. The CFA had also asked in their application for certain financial reliefs on an interim basis to protect the assets of the teenager and had submitted a draft order with their application.
The teenager was currently the subject of a full care order which would expire on his eighteenth birthday. The teenager was in the care of his aunt, but this was an emergency placement. There was an impediment that prevented the aunt from providing a long-term foster placement. The CFA recognised this placement was not ideal and had been trying to find another suitable placement. Aftercare planning had commenced.
The CFA lawyer told the court the teenager had been formally diagnosed with a mild learning disability, but the assessing doctor had believed that it bordered on a moderate learning disability. He said the teenager was impulsive and had little or no capability to manage money. He said that the boy had been in receipt of a disability allowance and a considerable sum had accumulated. He had an account in his own name, but it was managed by his aunt.
The CFA, the GAL and the aunt were conscious that once the teenager turned 18, he would have access to this money. They worried this sum would be unwisely dissipated and/or that he would be taken of advantage of. Counsel told the court the aunt gave the teenager €100 per week from his allowance and she was paid €200 per month for caring for him.
Counsel for the GAL said the GAL was supporting the application. She said she believed that there needed to be an inquiry into the capacity of the teenager. The GAL was anxious the teenager’s assets were protected as she felt he had little concept of money. She said the teenager was very impulsive.
He had said that when he turned 18 he would be able to buy cigarettes, cannabis and alcohol and that he also intended to buy a horse. She said that the teenager had no concept of cost, how much he was charged for things and how much change he could expect from a transaction. She supported the extra financial reliefs the CFA sought in relation to the teenager’s assets. She told the court that the teenager was not aware or on notice of this application.
The judge was anxious that the aunt was properly protected as she was doing very valuable work for very little renumeration. She said €200 appeared very little to house, clothe and feed a teenager. Counsel for the CFA told the court that the aunt was also in receipt of foster carers’ allowance which was €300 per week, and this would continue for some time and throughout the teenager’s aftercare period.
The judge said she was happy to appoint a medical visitor to make inquiries as to the soundness of the boy’s mind. She specifically stated that the teenager be informed of the order she had made and that he be given every opportunity to attend and to address the court if he wanted to on the next occasion the matter was in the court.
She also appointed the same GAL who had worked with the teenager during his time in the care of the CFA. She ordered the aunt be formally notified of the application. She ordered the HSE be made a notice party and copies of the application files be forward to the HSE. She ordered the interim financial reliefs as requested by the CFA and adjourned the matter for four weeks.
[C] High Court makes interim orders detaining young person as wardship application prepared
The Child and Family Agency (CFA) brought an application to the High Court for a hearing for admission to wardship of a young person soon to turn 18, and sought interim orders. All interested parties had been put on notice of the application and the guardian ad litem (GAL), the HSE and the parents were all represented in court.
The application concerned a girl who had been in the care of the CFA, including in special care. She had a protracted history which had included significant episodes of self-harm, property damage and exceptionally high-risk behaviour to herself and others.
The CFA sought a suite of interim orders which included detention orders. The court heard the girl was no longer in special care but a residential unit that had electronic keypad locks to which she did not have access, and it therefore was a de facto detention. It was noted that the young person would turn 18 years of age in three days’ time. Counsel for the CFA stated the orders were necessary and proportionate for her protection and safety.
Counsel for the CFA told the court that there was a dispute as to the capacity of the young person and there were two conflicting psychiatric reports. She said the report of a medical visitor would assist the court with the issue of capacity. The CFA were committed to her care and would in the interim continue to fund her care and placement.
The evidence of the HSE was that this young person satisfied the “joint protocol” requirements and stated they were neutral with regards to the orders the CFA had requested.
Counsel on behalf of the parents stated they neither consented nor objected to the application and their position at this point was neutral until they had reviewed all the papers and reports associated with the application.
Counsel on behalf of the GAL said the GAL supported this application and the interim orders and would be supporting an application for wardship. She said the reports of the psychologists and psychiatrists who had worked with the young person over long periods of time had to carry more weight than reports from those who had only recently become involved in her care. The GAL also told the court that there remained a valid previous High Court order in the form of an injunction restraining further capacity reports on the young person.
The President of the High Court said she was very glad of the cooperation from all parties, and noted it was helpful the HSE and the parents had remained neutral with regard to the interim orders that had been requested. She said she was in no doubt the orders requested were detention orders. She adjourned the matter for the shortest possible time to allow all parties to receive all reports and papers. She gave all parties liberty to apply to her prior to the hearing date to have the orders removed or changed as they felt appropriate or necessary.
[D] High Court continues existing orders while wardship application sought
The Child and Family Agency (CFA) asked the High Court to continue existing orders, including a detention order, while an application was made to admit a child to wardship when the full care order expired on the young person’s eighteenth birthday. The young person remained in residential care.
The solicitor for the CFA informed the court that the respondent’s condition had deteriorated. She was refusing her medication, had assaulted staff and had made plans to abscond. The court was told that although the placement was not ideal, it was not under threat and no other alternative appropriate placements were available. The evidence remained that the respondent was of unsound mind and did not have capacity.
The President of the High Court said she was disappointed with the situation and noted that the respondent would normally have spoken in court with her, but today she did not. She said she hoped a suitable placement would be found. She continued the existing orders and adjourned the matter for the hearing of the wardship application.
[E] Detention orders renewed as inquiry into capacity continues
A young man remained in the aftercare programme of the Child and Family Agency (CFA) while an application to make him a Ward of Court was being pursued. The High Court heard he remained in the same placement and the CFA continued to fund his care.
The lawyer for the CFA said the young man had significant needs and was subject to detention orders which the CFA wanted to renew. A section 12 medical visitor’s report had been completed but a capacity assessment had not, therefore the court could not complete the inquiry into the young man’s capacity. There was an updated psychiatric report from his consultant psychiatrist which recommended that the detention orders remain.
The young man had made slight improvements but difficulties remained when his behaviour was challenged. The lawyer said that despite enormous efforts no appropriate alternative placement had been found and it was 18 months since the young man had turned 18. The current placement remained unsuitable, but the young man remained there as there was no other alternative.
The representative from the HSE said they would provide the capacity assessor with all relevant reports and that the CFA and HSE had worked very closely to try to devise a long-term plan and placement that would meet the young man’s needs.
The representative for the guardian ad litem (GAL) said the young man was doing well and there had been slight improvements. He recognised that it was difficult to progress matters whilst waiting for the capacity assessment and wardship inquiry. However, the GAL was concerned that reports from the CFA stated there should be no further referrals seeking a placement until the inquiry into capacity had been completed. The GAL was concerned this would be detrimental to the young man as finding a suitable placement was imperative.
The President of the High Court said she was also concerned about the delay and from her reading of the reports, she had not seen any progress. Things had improved slightly because the young man was not being challenged and everything was being done his way. She renewed the detention orders and stated that she would list the inquiry to be heard in the vacation as soon as the capacity assessment was available.
[F] Child in care under “distressing circumstances” made Ward of Court
The President of the High Court admitted a young person into wardship where she had been found to be of unsound mind and incapable of managing her own affairs.
The court had heard that the girl had come into care under “very distressing circumstances” and did not have contact with her parents, nor wished to. Her foster carers were prepared to continue to provide a home for her for the next two years, but would be unable to offer her long-term care. The court heard that the foster mother was providing the young person with significant assistance with daily living.
A psychiatric report found the young person to be of “unsound mind and incapable of managing her own affairs”, while the psychologist’s report found her to be “operating at a functioning level of five-year-old”. The judge remarked that she was “very vulnerable” and made all of the orders sought.
[G] Dispute over access for young man formerly in care now a Ward of Court
A review of a young man who had been subject of a care order and in care since he was 15, and who was now a Ward of Court, heard a dispute between his parents and the ward committee over access with his family. The High Court judge asked the parties to discuss access arrangements but gave liberty for an access application if agreement could not be reached.
The Health Service Executive (HSE) and the Child and Family Agency (CFA) were present and legally represented. The father was present and represented by a solicitor and senior and junior barristers. The mother was not present but was represented by a solicitor and a barrister. The guardian ad litem (GAL) was also represented.
When a person is taken into wardship a committee is appointed. The committee can be a family member or the court can appoint the general solicitor. In this case, the general solicitor had been appointed as committee to the young man. All professionals had submitted reports. A statement of truth had been submitted by an independent social worker appointed by the committee.
The senior counsel for the father had objected to that statement of truth being admitted into evidence and the social worker was not present to give the evidence. Counsel said that he accepted that the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 provided that a statement of truth can be given, but order 67 of the Rules of the Superior Courts governs the wardship applications and procedures and this order gave no direction with regards to a statement of truth. Order 67 required evidence be given by sworn affidavit.
The legal representative for the committee said that she could ask the social worker to swear what she had written in her statement of truth on affidavit but the facts in the documents would be the same.
All parties were agreed on everything except for the issue of access. The father and the mother wanted an increase in access and wanted access to take place unsupervised and in the family home. Counsel for the father was instructed today to request that of the court. He said that it was not the role of the committee to either object or consent to any access the ward or the family of the ward would want.
He said that the role of the committee was twofold, that of committee of the estate and committee of the person. The estate related to the assets and finances of the ward and the role of the person was related to ward’s comfort. He had reviewed the Lunacy Act 1871 and the Lunacy Act of 1890, along with order 67 and the legal textbooks detailing the history of the Lunacy Act.
The senior counsel said the role of the committee that was related to committee of the person was limited to the personal needs of the young man being met. The committee acted on the direction of the court. The committee was not free to have a roving commission into all and any areas they chose.
He said the ward, the young man, wanted access, in the language of the Assisted Decision Making (Capacity) Act 2015, it was his ‘will and preference’. The young man’s family wanted access and it was acknowledged in all reports the young man benefitted from this access. The current access was limited and restrictive. He said the role of the committee of the person was never contemplated to have a broad remit on historical matters and make decisions accordingly. The access was limited and restrictive and it was an interference in their constitutional rights to a family.
The legal representatives for the CFA, HSE, and committee said that there was no proper motion before the court for a petition of this kind. If the parents had wanted to change access, then the parents must bring a notice of motion before the court.
The representative of the CFA said that the young man had been in care for the last five years and the District Court care order had never been challenged. The young man had never returned to the family home since the care order was made in 2015.
The representative for the committee said that it was not that the committee had said there could never be increased access or access within the family home. The young man had left the family home having had exceptionally traumatic experiences in that home. The psychological reports before the court suggested that he was suffering from post-traumatic stress disorder. It would not be in his best interests to go from the current one-hour, supervised access per fortnight and weekly telephone calls to lengthy unsupervised access in a place that was known to be associated with traumatic events. He said all factors had to be considered and a plan with the associated professionals involved with the young man needed to be devised. It had to be explored with the young man what ‘going home’ meant.
The judge said that he was happy that all parties were agreed on all matters apart from the access. He noted the young man was doing well, was sporty and there was evidence of a successful placement. He said that he would continue all the orders on the same terms and adjourned the matter for six months. He asked the parties to engage in discussions regarding access and that if agreement could not be reached, he gave liberty for a hearing date to be set for that application.
[H] Review of non-verbal young man with extensive needs
In another case the President of the High Court heard a review regarding a young man who had been made a Ward of Court in 2021. The young man had extensive needs that had exceeded his mother’s capacity to care for him and he was in a residential unit.
On admitting the young person into wardship, the President authorised his residential placement to take all necessary steps to ensure his protection, health, safety and welfare. The young man was non-verbal and was unable to learn Lamh (sign language). The court had sight of a review report from the HSE Disability Care Manager which noted that the young man was being well supported in his residential home and that his team were also well supported. Visits home to see his mother and siblings were being facilitated. The HSE client-focused review form set out his individualised support in care, including the day services he was availing of and his health and wellbeing.
The barrister for the independent social worker informed the court that concerns were expressed that the young person was not settling into his new placement and a trial of a shorter day was being put forward. She stated that there were also details in the report regarding “challenges arising from his history and diagnosis and access cancelled at the last minute”. The court heard that his family had not gone to visit him in his new home due to frequent cancellations by his mother and although the young man was non-verbal, he had looked unhappy.
The independent social worker’s report also contained details relating to his medication and speech and language therapy and that an irregular heartbeat had been detected and a non-urgent request for an ECG had been sent out with information coming back that he would be on a two-year waiting list. The court was advised that the ECG referral had been re-categorised as urgent and an appointment had been received for the coming weeks.
The social worker was recommending that the young man continue to be supported in the day service where he was continuing to do well and was settled, he had developed a good relationship with his peers and was enjoying daily activities with them. The room was bright and accessible and he was also using a sensory room.
The barrister for the GAL on behalf of the Committee advised the court that they were recommending that he continue with the day service, and asked that all of his medical records be transferred to his residential placement as a matter of urgency. The Committee was also recommending a court review in six months’ time and was in support of a continuation of the placement.
The court heard that the Committee were very satisfied that the young man had transitioned well to his new residential placement. The Committee was recommending that his family be encouraged to visit him there.
The judge noted that the young man was appropriately placed in his residential placement and that the court was satisfied that it was both necessary and appropriate that he remain there, subject to a review date.
[I] Young mother with disability remains in wardship list
A High Court judge continued to keep the case of a young mother with a disability in the wardship list due to child protection concerns as well as housing concerns.
While the CFA was no longer required to attend the reviews and all matters were being dealt with on a local basis, the judge remained concerned as the young person, who had a baby of her own, was socially isolated and not keen to go to the local mother and toddler group. The barrister for the CFA told the court that the District Court had given consent to the young woman remaining in a voluntary family arrangement and an assessment of her capacity, due to a disability, had taken place.
She had returned home in late 2021 and the professionals on the ground at a local level were fulfilling all the requirements set out, she was continuing to work with the social work department and there was no suggestion that her baby would go into care. Whilst there were continuing child protection concerns, all matters were being dealt with on a local basis.
The barrister for the GAL informed the court that the supports that were recommended by the GAL were now in place, including a family support worker, and counselling and addiction services as part of the wraparound service. The latter two would be funded by the HSE for three months and then funding would be reviewed. The young mother was going to be introduced to the Day Opportunities Programme in the following week and was awaiting a mental health appointment, having been referred by her GP. “She is still very vulnerable”, the court heard.
The barrister for the GAL also referenced the condition of the house her family was living in and the judge remarked that she was really concerned about the house because it was “now at a point where it’s impacting on [the baby’s] health in a very significant way, there is medical evidence”. She noted that it was “really important this matter is dealt with by the housing authority and significant evidence should be put on [the baby’s] health and the damp conditions in the house. It has to be taken on as one of the most vital things that need to be done, before we know it we’ll be back into bad weather and the situation will get worse.”
It was noted in court that the young mother had “no funds at all apart from her Disability Allowance”.
While the judge agreed that a point had almost been reached that perhaps ongoing reviews should not be necessary in light of ongoing engagement of services, she did not think the point had been reached yet. She stressed that she was “worried about the grooming, worried about socialisation …, vocational opportunities …, I’m worried about the house.” The judge decided therefore that one further review was “certainly necessary” and the case may need one further review before the end of the year.
[J] Young man with complex needs required urgent medical attention
In another case the court discussed the situation of a young man, who was non-verbal, who had recently reached the age of majority and who had been made a Ward of Court.
He had Autism Spectrum Condition, epilepsy and an intellectual disability and had been taken into care under a voluntary agreement as a boy with extensive needs, very little verbal communication and challenging behaviour. The judge stated for the benefit of the digital audio recording (DAR) that the GAL wished to emphasise the young person required “urgent dental treatment without delay and urgent treatment for his physical health”. The GAL also wished to point out that in relation to restraint, “any restraint involves removing his hand from a person, not being prevented from moving.”
The court heard that the young man need urgent dental treatment, and that he had been head butting, biting himself and slapping his head, however that behaviour stopped when given pain relief. He had also lost 1.5 stone in weight, therefore blood needed to be taken. He also needed to have his ear syringed. He would need sedation for these medical and dental appointments.
The governance of this young man’s placement had transferred to the HSE Disability Services and it had been brought to the attention of the HSE that he was experiencing pain and needed urgent dental treatment due to a deterioration in his recent behaviour. “This needs to be addressed as a matter of urgency,” stated the barrister for the HSE and it was the view of the HSE that he was “on the urgent category”, therefore treatment outside the jurisdiction in Northern Ireland could be considered if an appointment was unavailable here.
He was due to complete his school education in June 2022 and in previous months the court had made orders providing for his continued placement in the unit where he had been since 2018. The court had been provided with an update aftercare plan.
The young man was also going through a time of transition as he was moving into an adult residential placement. He was currently placed in a single occupancy residential unit with two-to-one staffing at all times. The staff were very aware of what was required in his routine and how to communicate with him, with picture exchange or Lamh. He was receiving sensory input, had access to a sensory room, was out for walks and had pressure massages. It was stated that the staff in his placement were trained in de-escalation procedures for his safety if he was having challenging behaviour and had recently been required to use the de-escalation procedure with minimum duration and force.
A smooth transition to adult services was being looked at and he was to remain in his current placement until mid-summer. His new placement would have a layout and furniture similar to his current placement and a suitable day service would need to be found.
The judge told the parties that it was appropriate and necessary for the current order to continue to allow the young man to benefit from his placement but no specific date or property “has been given to [him] as identified” and he had “no appointment as yet” for his dental treatment. Therefore the court sought to “do anything it can to facilitate treatment and wants to invite any submissions from anyone as to directions the court might give”.
The barrister for the HSE reported that the HSE was “very aware of concerns around his treatment and regards the matter as urgent, and [is aware of] the pain he is experiencing and that it is connected to his adverse behaviour.” Therefore treatment would be expedited.
The case was listed for formal review three weeks later.
