Child Care Law

ALTERNATIVE CARE OPTIONS

Donna Crampsie

Statutory Framework The Child Care Act, 1991 is the main statutory framework and sets

out the circumstances in which the State is permitted to intervene, in order to protect children.

This Act has been amended by the Children Acts, 1997 & 2001, and the Child Care (Amendment) Acts, 2007 & 2011.

The Child Care Act, 1991 places extremely onerous obligations on the Health Service Executive (“HSE”) to protect children. Section 3, states that “It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection.”

The Child Care Act,1991-Basic Principles Section 16, places an onus on the HSE to apply to Court where it

appears that a child requires care or protection, which s/he is unlikely to receive unless a Care Order or a Supervision Order is made.

Section 24, stipulates that in any proceedings before the Court, the welfare of the child is the paramount consideration.

Section 3(2)(c)affirms that the HSE shall have regard to the principle that it is generally in the best interest of a child to be brought up by his or her own family.

Part (III) and (IV) of the Act sets out the types of applications that the HSE may make to the District Court in order to protect children.

Protection of Children in Emergency Situations

The HSE may apply under Section 13 of the Child Care Act, 1991 for an Emergency Care Order (“ECO”). These applications may be brought before the Court at extremely short notice. In some occasions an application may be made ex parte, if the HSE considers that the safety or welfare of the child would be jeopardised if notice is given to the parents.

ECO’s frequently arise after a member of An Garda Siochana has used his/her powers under Section 12, to remove a child into the care of the HSE.

Section 12(1) states that An Garda Siochana may intervene where:-(a) there is an immediate and serious risk to the health or welfare of a child, and;

(b) it will not be sufficient for the protection of the child from such immediate and serious risk to await the making of an application for an ECO, by the HSE.

Protection of Children in Emergency Situations

When a member of An Garda Siochana exercises these powers, the child is then delivered to the care of a HSE Social Worker who will investigate, whether an immediate return to the care of his/her parent is feasible, or whether the child should be placed in emergency foster or residential care.

The HSE apply for an ECO after a member of An Garda Siochana has used his/her powers under Section 12 or it may apply independently on its own motion.

Section 13(1) states the criteria which a District Court Judge must consider prior to making an Order.

An ECO can be granted for a maximum period of eight (8) days. Generally, an ECO will be granted for the full period of time in order to facilitate an investigation an investigation by the HSE into the issues which gave rise to the application.

The District Court Judge may return the application in four (4) days time to afford the parent(s) with an opportunity to apply for legal aid.

Protection of Children in Emergency Situations-Ancillary Orders A Judge can, if necessary, issue a warrant authorising An Garda

Siochana to search for and enter by force any premises where there are reasonable grounds to believe that a child is for the purpose of executing the order.

Section 13(7)(a) allows the District Judge to make certain ancillary orders for the protection of children, including:-(i) Witholding the address or location of a child from one or both of the parents;(ii) Arrangements regarding the access, if any, which is to be permitted between the child and any named person and the conditions under which access is to take place;(iii) Medical or psychiatric examination, treatment or assessment of the child.

The District Court Judge has a wide discretion to make ancillary orders and restrict the rights of the natural parents

Emergency Care Orders-Practice and Procedure When an application is made for an ECO, Social Work Reports are

usually prepared by the Social Worker dealing with the case and distributed to the parties and the Judge in advance of the hearing. The purpose of providing a Social Work Report is to ensure that all parties have a summary of the evidence which will be given before the hearing takes place.

The only information upon which a Judge can grant an order is the verbal evidence given to the Court.

A Notice of Application is filed in Court in advance and a sworn Information may also be prepared. This Information will usually outline the facts which gave rise to the concerns for the child. In practice, the HSE will obtain written statements from An Garda Siochana, if they have exercised their powers pursuant to Section 12, of the CCA.1991. It is imperative that the Member involved attends to give direct evidence to the Court.

Applications for Longer Term Orders

Part (IV) of the Act deals with the remaining three (3) applications which the HSE can make, which are as follows:-

1) An Interim Care Order (Section 17)2) A Full Care Order (Section 18)3) A Supervision Order (Section 19)

Interim Care Orders Where a District Court Judge is satisfied on the application of a health board

that:-a) an application for a care order in respect of a child has been or is about to be made (whether or not an emergency care order is in force), andb)… that it is necessary for the protection of the child’s health and welfare that s/he be placed in the care of the HSE pending the determination of the application for the care order.

Further, the Court must be satisfied that:-a) the child has been or is being assaulted, ill treated, neglected or sexually abused orb) the child’s health, development or welfare has been avoidably impaired or neglected orc) the child’s health, development or welfare is likely to be avoidably impaired or neglected.

If the Judge is satisfied that the abovementioned circumstances exist then s/he will make an Interim Care Order.

Interim Care Orders-Duration and Notice Periods An Interim Care Order can be granted for a period of 29 days or

longer if there is consent from the respondent parents. An Interim Care Order is commonly sought after an ECO has been

granted to the HSE. However, an application for an Interim Care Order can also be made in isolation.

The HSE may apply for an extension of an Interim Care Order if it believes that the risks giving rise to the original application continue to subsist.

The HSE may also require further time to assess the parent’s capacity to protect the child and to meet the child’s welfare needs.

The HSE must give two (2) days notice to the parents, in advance of applying for an Interim Care Order. However, in certain circumstances this notice period may be dispensed with (Section 17(3).

Interim Care Orders

It is very rare for Interim Care Orders to be made without notice to the parents.

The Judge may extend the Interim Care Order on the application of “any of the parties”. It has been argued that this includes a Guardian Ad Litem.

Section 17(4) provides that the Judge may also make directions in relation to access and medical treatment for the child.

Full Care Order

The HSE can make an application for a Full Care Order under Section 18 of the Act.

Section 18(1) sets out the criteria which must be satisfied-a) the child has been or is being assaulted, ill treated, neglected or sexually abused orb) the child’s health, development or welfare has been or is being avoidably impaired or neglected orc) the child’s health, development or welfare is likely to be avoidably impaired or neglected, and that the child requires care or protection which s/he is unlikely to receive unless the Court makes such an order.

Full Care Order-Duration and EffectThe Court should consider where a Full Care Order is

appropriate having regard to all the circumstances of the case, and whether there are alternative options of ensuring that the child’s needs can be met.

A Care Order can be granted by the District Court until the child’s 18th birthday or for a shorter period.

It is important to be aware that if a Care Order is granted this essentially transfers rights from the parents or guardian to the HSE, who shall decide inter alia the type of care to be provided for the child.

The Court has the power to order the parents to make a contribution to the HSE towards the cost of maintaining the child in care.

Supervision Order The HSE can make a Supervision Order under Section 19 of the Act,

and is generally sought when problems are brought to the attention of the HSE that do not warrant the removal of a child from his/her home.

The Supervision Order entitles the HSE to visit the family home on such periodic occasions as, the HSE considers necessary. This also facilitates the HSE giving parents any necessary advice as to the care of the child.

Visits may be announced or unannounced. The HSE frequently seeks directions from the Court under Section

19(4) e.g. that a child be brought to school every day on time. The HSE may also ask the Court to recommend that a parent

engage with certain services and undergo assessment. The Court may make recommendations or directions. The consequences of a breach of a direction is that a parent could be prosecuted.

A Judge can make a Supervision Order for a period of up to twelve (12) months

Supervision Orders-continued

Often, Supervision Orders are granted for shorter periods or are reviewed by the Court at a future date in order to review progress.

The C.C.A, 1991 states that the HSE must have regard to the principle that it is generally in the best interest of the child to be brought up by his/her own family.

The HSE should only remove a child from the care of his/her parents as a measure of last resort and only after all other possibilities have been investigated.

There is also a perception that if the family co-operate with the terms of the Supervision Order, that the family situation should improve and there will be no necessity to make an application for an Interim Care Order.

Ancillary Applications Section 37 makes provision for access applications to be made in respect of children

in care. It states that “any person” who has a bona fide interest in the child, may apply for access. For example an access application may be made by an aunt/uncle or grandparent.

Section 47 is a catch all provision which can be initiated by “any person” and allows the Judge to make an Order on any question affecting the welfare of a child. For example, the HSE may make an application for a child to be placed out of the jurisdiction, to allocate a Social Worker or appoint an after care worker to a child.

Section 20 provides that the Health Service Executive may be required to undertake an investigation of the circumstances of a child, and to prepare a report for court, with a view to determining whether a care or a supervision order is appropriate, in relation to a child who is the subject of proceedings concerning custody, access or the welfare of the child.

It is not the function of the HSE to make directions or give recommendations in relation to custody and access or which parent is best placed to care for a child. Consequently, careful consideration should be given by Practitioners prior to making an application pursuant to Section 20 as to whether it is absolutely necessary to involve the HSE in the proceedings.

Practice and Procedure

The HSE usually undertakes considerable planning prior to any application being made to the District Court. In particular, Chapter 5 of the Children First Guidelines deals with the assessment and management of child protection concerns.

As long as it does not put a child in jeopardy, the Social Worker will ordinarily interview the child and the child’s parents.

The HSE must strike a balance between protecting the child and avoiding unnecessary and distressing intervention.

The Social Worker may also consult other professional who may have information in order to form an informed opinion e.g. schools, GPs etc.

Practice and Procedure-continued

In cases where there is a child protection concern, the HSE will convene a Child Protection Case Conference, involving all relevant professionals.

The Child’s parents should be included in the decision making process.

A Child Protection Case Conference is held when decisions of a serious nature are being considered.

Minutes are taken and a child protection plan may be put in place. It is important for solicitors acting for the parents to obtain copies of these documents.

The Courts View-Points to Note In deciding the merits of an Application the Court may consider a

number of factors:-1. An Interim Care/Care Order should be a measure of last resort.

Would a less restrictive alternative such as a Supervision Order be more appropriate. On balance would the impact of removing a child from his/her parents be more detrimental than the harm anticipated;

2. Details of the HSE’s efforts to provide a support system to the parents to alleviate the perceived risks;

3. Consider whether it is appropriate for the voice of the child to be heard and consider whether an application should be made for the appointment of a Guardian Ad Litem, to independently establish the child’s wishes, feelings and interests and represent them to Court.

4. Ascertain whether all relevant information has been taken into account by the HSE through viewing the minutes of case conferences/statutory review meetings and analyse whether due weight has been given by the HSE to the opinion of other experts.

The Courts Views-Points to Note

5. In Re B. (Minors)[1998] 1.F.L.R.368,which is an English case and would be persuasive in this jurisdiction, the importance of regular reviews was highlighted. It was held that, it would be an abuse of statutory power to allow the local authorities manage the Child’s life by a series of repeated interim orders covering a twelve (12) month period.

6. Ascertain whether the HSE have given the parents (and the child) an appropriate opportunity to give their input into the decision making process.

7. Ascertain whether your client could be assisted if family supports were explored and implemented. A Family Support worker could be allocated.

8. Explore whether a short term Care Order is more appropriate than a Full Care Order, would be more proportionate and may allow for a parent to focus on what they need to achieve. This should always be balanced against the child’s need.

9. Explore whether a Voluntary Care Arrangement under Section 4 of the Child Care Act is more appropriate than a Court Order.

10. Whether an application should be made under Section 22, for a Care Order to be discharged or varied in circumstances where pro-active steps have been taken by a parent and they are now in a position to resume care.

Foster Care and Placement with Relatives Section 36 defines the various ways in which

a child placed in the care of the HSE may be cared for, which are as follows:-

a) Placing a child with a foster parent;b) Placing a child in residential care;c) Placing a child with a suitable person with a

view to considering adoption;d) By making such other suitable arrangements,

including placing a child with a relative.

Foster Care an Overview

Section 36(2) of the Child Care Act defines a Foster Parent as a person other than a relative of a child, who is taking care of the child on behalf of a health board in accordance with the regulations made under section 39.

S.I. No. 261/1995-Child Care (Placement of Children in Foster Care) Regulations, 1995.

The 1995 Regulations are divided into five(5) parts:-1) The welfare of the child;2) Pre-placement procedure;3) Duties of foster parents/relatives;4) How placements are to be monitored;5) Finally, the removal of children from their placement.

Caselaw Olsson-v-Sweden (10465/83) 24th March, 1988. It was held that a

combination of restricted access, and placement in a location which was a substantial distance away equated to a breach of Article 8 rights.

Eastern Health Board-v-District Court Judge McDonnell [1999] 1IR 174 (H.C)The order made by the District Court was subject to an application for judicial review. It was held that the Judge did have power to attach conditions to a Care Order and that a District Court Judge enjoys substantial supervisory powers and may have an on-going involvement in the matter.

Western Health Board-v-K.M (H.C),14th March, 2001.McGuinness.J, held that the District Court had power pursuant to Section 36 of the Child Care Act, 1991 to place a child, in relative care outside the jurisdiction. However, such discretion should be granted sparingly having regard to a number of factors, including whether or not access by a child’s natural parents would be possible in terms of distance and expense.

A Child as a party to Proceedings The rights of child to be heard stems from Article 42.A.4. of the

Constitution, which provides that a child who is:-1) Capable of forming his or her own views;2) The views of the child shall be ascertained and given due weight having

regard to the age and maturity of the child. Section 25 of the Child Care Act, 1991 M.N.-v-R.N.[2008] IEHC 382

This case involved the interpretation of Article 11(2) Brussels II, which it was held imposes a positive mandatory obligation on the Court to provide a child with an opportunity to be heard, unless it appears inappropriate to do so having regard to the age or degree of maturity of the child.

Section 47 Reports, “the Court may make directions as it thinks proper for the purpose of procuring a report in writing on any question affecting the welfare of a party to the proceedings.”

Section 23 of the Child Care Act, 1997, permits the inclusion of hearsay evidence in circumstances where the child is unable to give evidence by reason of age, or it would not be in the interest or welfare of the child.

The need for a Guardian Ad Litem Service The need for a Guardian Ad Litem service was first identified in

England in 1973 following the death of a child, Maria Colwell, who was living in relative foster care and was returned to the care of her parents and subsequently tragically died.

A Guardian Ad Litem (“GAL”) has been identified as “ an independent representative appointed by the Court to represent the child’s personal and legal interests in legal proceedings.

Section 26 of the Child Care Act, 1991 allows the Court to appoint a GAL for a child when, it is “ in the interest of the child and in the interest of justice to do so”.

Section 18 of the Children Act, 1997 inserts a new Section 18 into the Guardianship of Infants Act, 1964 to provide for the appointment of a GAL in proceedings concerning custody, access and guardianship matters.

Functions of a Guardian Ad Litem The Child Care (Amendment) Act, 2011 sets out the functions of a GAL. It states that a GAL should promote the best interests of the child concerned and

convey the views of that child to the Court, insofar as practicable, having regard to the age and understanding of the child.

This is a two tier process and involves a determination of what is in the child’s best interest and conveying the views of the child. These two concepts may not be mutually compatible.

In this context the role of the GAL is to lay the views of the child before the Court and the Court will ultimately make a determination as to what is in the child’s best interests.

The appointment of a GAL varies widely from appointment in virtually all cases to areas where appointments are virtually non-existent.

There is currently no formal qualification for an individual to become a GAL. However, in practice a GAL will usually hold a social work qualification or experience in psychology.

The role of the GAL can be divided into four functions:-1) Information2)Consultation3)Case Advocacy 4) Representation

Legal Representation of a GAL

A GAL is entitled to have legal representation, when considering whether or not legal representation is appropriate the following should be considered:-1) Does the case involve complex legal issues;2) Is the case heavily contested;3) Does the interests of the child require evidence through cross-examination;4) Does the GAL require assistance with the Court process;5) Is there a lack of continuity.

Cross-Examining Witnesses

Putting questions to an expert which places a different interpretation on the facts upon which an expert has based his/her opinion, and eliciting an answer which shows a different interpretation or a departure from the findings contained in the report.

Challenge the expert witnesses' opinion by introducing different precedent cases which you are relying on and/ or support your propositions.

Establishing how an expert formed his or her opinion.Ask the expert about their qualifications, is the matter

outside their normal field of expertise.

Children and Family Relationships Act 2015

Different pathways to parentage

Two (2) Key Principles:-

1) Best interest principle2) Voice of the child

1) The Best Interest Principle- Eleven (11) Factors- Section 31 (3)- Section 31 (5)

2) Voice of the child- Section 31(1) (a)- Section 32(1) (b)

Children and Family Relationship Act 2015

Automatic guardianship for non-marital fathers provided-

He has lived with the child’s mother for 12 consecutive months, including at least 3 months with the mother and child following the child’s birth.

The period of co-habitation can take place at any time before the child turns 18

Previously there were 2 mechanisms available to unmarried fathers to acquire guardianship rights:-

1) Statutory Declaration ( reference to father’s name on birth certificate is not sufficent to confer guardianship rights)

2) Application to Court for Guardianship

Children and Family Relationship Act 2015

Guardianship The Act provides that a step-parent, a civil partner or a person who

has co-habited with a parent for not less than three years may apply to the Court to become a guardian where they have co-parented the child for more than 2 years.

A person who has provided for the child’s day to day care for a continuous period of more than one year may apply if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship. For example, a grandparent or foster parent.

The court retains discretion to grant rights in relation to certain major decisions:

- Where the child should live and with whom- Decisions about the child’s religious spiritual and cultural up-bringing- Consents to medical, dental and other health related treatment- Placing the child for adoption or consenting to the child’s adoption.

Children and Family Relationship Act, 2015

Custody• The Act provides that a parent’s or civil partner, or a parent’s co-habitant of

not less than three years duration, can apply for custody where they shared parenting of a child for two years.

Assisted Human Reproduction (A.H.R.)• Commencement not prior to April, 2016• The Act does not change the basic rule that the birth mother is the legal

mother of the child.• The Act aims to provide for civil partners and co-habitants to be a legal

parent. This person is known as the ‘intending parent’, provided the mother and intending parent has given their consent in advance.

• In order for the above principle to apply the donor assisted re-production must take place in a clinical setting.

• Retrospective recognition of parentage-Circuit Court application• Donors must be at least 18 years old• National Donor-Conceived Person Register