2. It is submitted by the HSE that the Court does not have power under section 47 of the Act or otherwise to direct that the HSE make an application for a Supervision Order. It is submitted that pursuant to section 19(1) of the Act, the Court may make a Supervision Order only on the application of the HSE (save in the circumstances set out in section 18(5) and (6), which do not arise in this case). It is submitted that the making of such an application is a matter to be decided by the HSE pursuant to its general duties under the Act and its particular duties under section 16.

3. It is submitted by the GAL and respondent mother that the Court has power to make the direction sought pursuant to section 47 of the Act. It is submitted that the Court, in exercising its supervisory capacity (as described in EHB v McDonnell [1999] 1 IR 174), may make any direction on any question affecting the welfare of a child in the care of the HSE, and that this includes the power to direct the HSE to make an application for a Supervision Order. It is submitted that there is no restriction on the power of the Court to make directions under section 47, and that the Court ought to make the direction sought in pursuance of the interests and welfare of the child per section 24. It is submitted that it would be proper for this Court to make such an order, in order to vindicate the constitutional rights of the subject child. Counsel referred to the cases of Eastern Health Board v McDonnell and Western Health Board v KM [2002] 2 IR 493 and submitted that the judgments in those cases supported the submission that this Court has the power to make the requested direction.

4. I accept that, as set out in WHB v KM, the construction of the Act should be approached in a purposive manner and should be construed as widely and liberally as fairly can be done. However, as pointed out by McGuinness J in her judgment at page 511:

“this does not of course imply that section 47 can be looked at apart from its context of the general framework of the Act, or that the widely drawn terms of the section means that the District Court is simply at large in orders it may make pursuant to this section.”

6. Section 19 of the Act deals with supervision orders. Section 19 (1) provides that “where, on the application of a health board ...”. That section does not make provision for application for a Supervision Order to be made by anyone other than the HSE. Section 18(5) and (6) provide that the Court may make a Supervision Order in the circumstances set out in those subsections but does not authorise the making of a Supervision Order in any other circumstances. None of those circumstances arise in this case, as the HSE has not moved an application for a care order. Section 17 makes no provision for the making of a Supervision Order under that section in any circumstances. I note that section 17(2) provides that an application for an extension of an Interim Care Order may be made by any of the parties thereto. I note that section 18(2) provides that the Court may, of its own motion or on the application of any person, extend the operation of a Care Order in the circumstances set out therein. There are no such provisions in the Act in relation to application for a Supervision Order being made by any party other than the HSE, or for the Court of its own motion to make or extend a supervision order. Given that the legislation is quite specific (and different) in respect of the powers given to parties to apply and to the Court to act on its own motion under sections 17, 18, and 19, I do not believe that section 47 can be used to attribute to the Court or other parties the power to make application specifically reserved to the HSE, in particular a Supervision Order (or to direct that such an order be applied for), however desirable it might that such application be made.

7. If I were to grant the application, then this Court would be acting either as a review tribunal in respect of the decision of the HSE not to make an application to the Court, or as an appeal tribunal in respect of the decision of the HSE not to make an application to the Court. I do not believe that this Court has jurisdiction to do either.

8. I, therefore, refuse the application.