The primary legislation regulating child care policy is the Child Care Act 1991 which brought in considerable changes in relation to children in care. Until the main part of the Act was implemented in 1995, child care policy had been regulated by the 1908 Children Act.
Under the Child Care Act 1991 Act, the Health Service Executive (HSE) has a statutory duty to promote the welfare of children who are not receiving adequate care and protection. The definition of a child is a person under 18 years of age who is not or has not been married.
When carrying out its statutory duty the HSE must have regard to the following:
Among other things, the HSE is required to:
In April 2013 the Child Care Law Reporting Project was launched. It was established to examine and report on child care proceedings in the courts.
If a child is in need of care and protection and is unlikely to receive it at home, then the HSE must take them into care. This may happen for example, in the case of an orphan or an abandoned child.
In other cases where parents are unable to cope due to illness or other problems they may agree to their children being taken into the care of the HSE. This is known as voluntary care. In these cases while the HSE has care of the children it must consider the parents' wishes as to how the care is provided. The HSE is obliged to maintain these children for as long as their welfare requires it. At present there are over 5,000 children in care in Ireland; the majority of whom are in voluntary care.
There are a number of procedures which the HSE can use when dealing with children who are at risk or who are in need of care. The HSE may apply to the courts for a number of different orders. These orders give the courts a range of powers (including decisions-making), about the type of care necessary and about access to the children for parents and other relatives. The following is a sumary of these orders:
In general, the various orders involve the child being taken into care by the HSE. A supervision order however, involves the child being visited and monitored in their own home by the HSE. See "Further information" below on the various orders.
The court must make all decisions on the basis that the welfare of the child is paramount. With this consideration in mind the court may order that the child be joined as a party to the care proceedings. This means that the child has separate legal representation paid for by the HSE. If the child is not a party to the proceedings the court may appoint a guardian ad litem to speak for the child. (A guardian ad litem is an independent person appointed by the court to represent the wishes and interests of a child in specified court proceedings).
The Children Act 2001 provided for family welfare conferences for children at risk from their own behaviour and these provisions came into effect in July 2004. The family welfare conference is a mechanism for early intervention and the conference may be convened where:
The function of a family welfare conference is to decide if the child is in need of special care or protection and if so, to recommend to the HSE that it applies for a special care order. If not, the conference may make appropriate recommendations to the HSE, including, if necessary, a recommendation that the HSE apply for a care order or a supervision order. The conference decisions must be unanimous and if it is not possible to get agreement, the HSE must make the decision.
The conference may be attended by the child, the parents or guardians, any
guardian ad litem, other relatives agreed by the co-ordinator after consulting
the child and the parents, HSE officials and any other person who could make a
positive contribution because of knowledge of the child or the family or
because of particular expertise.
When the HSE receives the conference recommendation, it may:
Family welfare conferences have legal privilege - this means that any information, statement or admission disclosed at such a conference will not be admissible in evidence in court.
When a child is in the care of the HSE there are a number of different ways in which care can be provided. Whatever kind of care is chosen the HSE must facilitate reasonable access for the parents or other relatives of the children in its care.
Where possible the HSE places the child with foster parents. The Child Care (Placement of Children in Foster Care) Regulations 1995 require that a care plan for the child be drawn up which sets out, among other things, the support to be provided to the child and the foster parents and the arrangements for access to the child in foster care by parents or relatives. If there is a shortage of foster parents however, children may be placed in residential care instead.
Residential care can be in a home run by the HSE, a children's residential centre registered under the 1991 Act, a school or other suitable place of residence. The Child Care (Placement of Children in Residential Care) Regulations 1995 state the requirements for the placing of children in residential care and the standards for residential centres which are registered with the HSE. The centres are subject to inspection by the Health Information and Quality Authority.
Children taken into care under special care orders or interim special care orders are place in special care units. The HSE may provide and maintain special care units or make arrangements with voluntary bodies to provide and operate them. All centres are subject to the approval of the Minister for Children and Youth Affairs. The Minister makes regulations dealing with the detailed operation of such centres. Children who are convicted of an offence may not be placed in special care units.
The Child Care (Placement of Children with Relatives) Regulations 1995 make provision for relatives to receive an allowance for caring for a child placed with them by the HSE. The regulations set out the arrangements for the placement and are broadly similar to the Foster Care Regulations.
The HSE can provide further assistance to young people up to the age of 21 who have been in care. This assistance may include arranging accommodation or contributing towards maintenance while the young person continues at school or college.
Under the 1991 Act there are a number of procedures which the HSE can use when dealing with children who are at risk or who are in need of care. The HSE may apply to the courts for a number of different orders which give the courts a range of powers including decisions about the kind of care, and the access to the children for parents and other relatives:
These orders replaced the previous fit person orders and place of safety orders. The Children Act 2001 amended the Child Care Act 1991 to allow for another sort of order - a special care order. This is for situations where the child is at risk from his/her own behaviour.
If the gardaí have reason to believe that there is an immediate and serious risk to the health or welfare of a child which cannot wait until an emergency care order is made, they have the power to enter the home and remove a child, by force if necessary, to safety. The child must be given into the care of the HSE as soon as possible. The HSE may either return the child to the parents/guardians or may apply to the District Court for an emergency care order. If the court is not due to sit within 3 days a special sitting must be arranged.
The HSE can apply for an emergency care order for a child who is still at home or for one who has been removed by the gardaí. This may be made without notice being given to the parents or guardians of the child. The order will be made if the judge considers that there is an immediate and serious risk to the health or welfare of the child requiring him/her to be placed, or to remain in, the care of the HSE. The child must remain in the care of the HSE for 8 days or a shorter period if specified in the order.
The HSE must apply for a care order or a supervision order (see below) if a child needs care and protection which he/she is unlikely to receive without an order. The District Court judge may make an interim care order while the decision on a full care order is pending. This means that the child is placed in the care of the HSE for 8 days. It may be extended if the HSE and the parents agree. Generally the parents/guardians must be given notice of an interim care order application.
A care order may be made when the court is satisfied that:
When a care order is made the child remains in the care of the HSE for the length of time specified by the order or until the age of 18 when he/she is no longer a child. The HSE has the rights and duties of a parent during this time.
A supervision order is an alternative to children being taken into the care of the HSE.
During the application for a care order the court may decide that a care order is not necessary or appropriate, but that the child should be visited regularly by the HSE, and a supervision order may be made. It may be made instead of a care order or while waiting for a decision on a care order. Alternatively the HSE may apply to the court for a supervision order instead of a care order.
A supervision order gives the HSE the authority to visit and monitor the health and welfare of the child and to give the parents any necessary advice. The order is for up to a maximum of 12 months but may be renewed.
The HSE must apply for a special care order or an interim special care order where a child needs special care and protection and is unlikely to get it unless such an order is made. The HSE must convene a family welfare conference before applying for the order.
The court may make a special care order if it is satisfied that:
A special care order means that the child is committed to the HSE's care for as long as it remains in force. It authorises the board to provide appropriate care, education and treatment and, for that purpose, to detain the child in a special care unit. The order will initially be for a period between 3 and 6 months and may be extended.
Special care orders may be varied by the court on its own initiative or by request of the HSE. The court may make a supervision or care order in respect of the child if appropriate.
Interim special care orders may be made before the normal procedure for a special care order is complete. Such orders will mean that the child may be detained in a special care unit for up to 28 days.
If the gardaí have reasonable cause to believe that there are grounds for a special care order but the child's protection cannot wait for the procedures to be completed in the normal way, they may place the child in the custody of the HSE. The HSE must then apply for an interim special care order.
If you have a question relating to this topic you can contact the Citizens Information Phone Service on 0761 07 4000 (Monday to Friday, 9am to 8pm) or you can visit your local Citizens Information Centre.