The principal law in Ireland in relation to the care of children is the Child Care Act, 1991. Incidentally a child is defined as a person under the age of 18 who has not married.
The Child Care Act provides that in any court proceedings concerning a child the Court must regard the welfare of the child as the principle guide in it’s decision making.
Depending on the age of the child, the Court will also have to have regard to the wishes of the child and the parents but the guiding principle is the welfare of the child.
The Child Care Act 1991 also sets out the role of the HSE in child care issues and under section 3 of Part III of the Act which places certain duties and obligations on the HSE in the whole area of child care. The HSE must also have regard to the wishes of the parents in carrying out it’s statutory duties.
High Court decisions have held that it is generally in the best interests of the child to be brought up in his own family so for this reason the intervention of the HSE to override the wishes of the parents has been limited to exceptional cases. Where the HSE feels intervention is necessary, it should first consider whether proper care could be given with the child staying within his/her family with the proper supports being provided by the HSE.
Section 4 of the Child Care Act 1991 allows the HSE to take a child into voluntary care with the consent of the parents where the child’s care and protection requires it.
Section 5 of the Act obliges the HSE to deal with homeless children and provide them with “suitable accommodation”.
Children in emergency situations
Both the HSE and the Gardai have extensive powers to protect children in emergency situations. Section 12 allows the Gardai to remove a child to safety where there are reasonable grounds for thinking that there are immediate and serious risks to the welfare or health of the child. When this occurs and the child is not returned to his/her custodian/guardian, the HSE is then obliged to make an application for an emergency care order in the District Court.
This emergency care order will see the child being placed in the care of the HSE for up to 8 days. An appeal to the making of an emergency care order does not stay the operation of the order made.
The HSE and care proceedings
Part IV of the Act covers the role of the HSE in situations where the child is thought to be in danger. If the HSE considers that a child is in need of care or protection it has a positive obligation to make an application to Court for either a care or supervision order.
A care order places the child in the care of the HSE for so long as he remains a child or for a lesser period. The HSE then acts as a parent to the child and is obliged to promote the child’s welfare, health, and development.
A supervision order is a half way house measure-the Court can make a supervision order prior to deciding on the merits of making a care order and involves the HSE calling to the child’s house to check on the welfare of the child and to advise the parents about caring for the child.
A supervision order can only last for 12 months but further supervision orders can be sought by the HSE.
Parents can be guilty of a criminal offence if they do not comply with the supervision order.
Interim care order
An interim care order is a care order for a short period of time-up to 28 days-and is designed to protect the child in the short term. An interim order can be longer than 28 days if the parents or a person acting in loco parentis consents.
Guardian ad litem
The Child Care Act 1991 introduced into Irish law the “guardian ad litem” which is a court appointed person to represent the child’s interests in any proceedings under the Act; he/she is independent of both the HSE and the child’s parents.
The Accommodation and Care of Children in Care
The Child Care Act, 1991 sets out a number of options when a child has been placed in the care of the HSE.
- Placing the child with a foster parent in foster care
- Placing the child in residential care in a residential care home or children’s residential centre
- Placing the child in boarding school
- Placing the child for adoption.
The Child Care (Placement of Children in Foster Care) Regulations, 1995 (SI 260/1995) govern the placing of children in foster care.
A foster parent is a person other than a relative of a child who is taking care of the child on behalf of the HSE. The HSE maintains a panel of prospective foster parents.
Before placing a child with foster parents, except in an emergency situation, the HSE is obliged to have an assessment of the child carried out to ensure that the child’s individual circumstances and needs are identified and appropriate care is provided.
The HSE is obliged to promote the welfare of the child in foster care and must have regard to the rights and duties of the parents.
The Child Care (Placement of Children in Foster Care) Regulations, 1995 (SI 260/1995) provide for
- A panel of prospective foster parents to be created and maintained by the HSE
- Assessment of the circumstances of the child
- A contract between the foster parents and the HSE
- The requirement for the HSE to prepare a care plan for the child, before placing her in care
- A register containing details of children in care
- An up to date case record of every child in foster care
- A fostering allowance payable to foster parents
- The duties of the foster parents
- The supervision requirements placed on the HSE in respect of children in foster care
- A regular review of each child care case and the plan for the care and upbringing of the child. This review must take place at least once a year and once every six months during the first two years of care. This review also requires the HSE to ascertain whether returning the child to the parents’ care would be in the child’s best interests. In carrying out such reviews, the HSE is obliged to take into account any views of the child, the parents, the foster parents, and any other person consulted in relation to the review
- The removal of the child from foster care, either at the request of the foster parents or where the HSE intends reuniting the child with his parents
The placing of children in residential care is governed by the Child Care (Placement of Children in Residential Care) Regulations, 1995, statutory instrument 259/1995
These regulations cover
- Standards in residential care
- Monitoring of placements
- The promotion of the welfare of the child.
The decision as to whether to place the child in residential care or foster care must be taken in the light of the individual needs and the circumstances of the child. Regardless of whether the child is in residential care or foster care the HSE is obliged to facilitate reasonable access by the parents/guardians or anyone with a bona fide interest in the child (Child Care Act, 1991, section 37).
Access to Children in Care
Section 37 of the Child Care Act, 1991 states:
|37.—(1) Where a child is in the care of a health board whether by virtue of an order under Part III or IV or otherwise, the board shall, subject to the provisions of this Act, facilitate reasonable access to the child by his parents, any person acting in loco parentis, or any other person who, in the opinion of the board, has a bona fide interest in the child and such access may include allowing the child to reside temporarily with any such person.|
|(2) Any person who is dissatisfied with arrangements made by a health board under subsection (1) may apply to the court, and the court may—|
|(a) make such order as it thinks proper regarding access to the child by that person, and|
|(b) vary or discharge that order on the application of any person.|
|(3) The court, on the application of a health board, and if it considers that it is necessary to do so in order to safeguard or promote the child’s welfare, may—|
|(a) make an order authorising the board to refuse to allow a named person access to a child in its care, and|
|(b) vary or discharge that order on the application of any person.|
|(4) This section is without prejudice to section 4 (2).|
If someone is not happy with the arrangements in relation to access he/she can apply to Court for the appropriate directions.
Generally, in relation to access to children in care, two principles prevail:
- The welfare of the child
- Access to parents and other relatives should be considered to be in the best interests of the child, unless proved otherwise.
Termination of Care
Termination of a child in care occurs where:
- The child reaches the age of 18 years as he is no longer a child in accordance with the Child Care Act, 1991
- A child has been placed in care voluntarily by parents and they resume care and custody
- A Court discharges a care order
- Where a care order expires and is not renewed.
The HSE can also remove a child from a placement.
Any person may apply to the Court for directions where a child is in the care of the HSE.
After a child reaches the age of 18, even though he is no longer a child, the HSE can continue to make provision for a child formerly in its care until he reaches the age of 21. This can include making provision for visits to the child, arrangements for completion of the child’s education, placing the child in a trade, or arranging appropriate accommodation.
The Child Care Act, 1991 allows the family law Court to vary or discharge any care/supervision order. Any person can also apply to Court to have orders discharged or varied as set out in section 22 of the Child Care Act, 1991.
By Terry Gorry