Children and the care system

The decision to place a child or young person in care may be either agreed on a voluntary basis with the child or young person’s parents/guardians, or by order of the courts such as care orders, emergency care orders or special care orders.

Children who require admission to care are accommodated through placement in foster care, placement with relatives, or residential care.

The primary legislation regulating child care policy is the Child Care Act 1991. The definition of a child in legislation is a person under 18 years of age.

Tusla - the Child and Family Agency

Under the Child Care Act 1991 Act, as amended by the Child and Family Agency Act 2013, Tusla - the Child and Family Agency has a remit to support and promote the development, welfare and protection of children, and the effective functioning of families. It must provide care and protection for children in circumstances where their parents have not been able to, or are unlikely to.

Tusla also has other responsibilities including to provide aftercare services to young adults leaving care, services for children who are homeless, and separated children seeking asylum.

If a child is in need of care and protection and is unlikely to receive it at home, then Tusla 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 Tusla. This is known as voluntary care. In these cases, while Tusla has care of the children, it must consider the parents' wishes as to how the care is provided.

In some circumstances, where it appears that a child is not receiving adequate care or protection, Tusla may apply to the court for an order. There are different types of orders Tusla can apply for depending on the type of care necessary:

• Emergency care order - maximum of 8 days in care
• Interim care order - maximum of 28 days in care but may be extended
• Care order - permanent or temporary and can continue up to age 18
• Supervision order - maximum of 12 months but may be renewed
• Interim special care order - maximum of 28 days but may be extended
• Special care order - a period of up to 3 months but may be extended.

The orders give Tusla a range of powers including making decisions about the kind of care necessary, and the access to the child or children for parents and other relatives.

An emergency care order

Tusla can apply for an emergency care order for a child who is still at home or for a child who has been removed by Gardaí if there is reason to believe that there is an immediate and serious risk to the health or welfare of a child. An emergency care order places a child in the care of Tusla for not more than 8 days and it cannot be renewed. This order can be made without notice being given to the parents or guardians of the child.

A care order

Tusla must apply for a care order if a child needs care and protection which they are unlikely to receive without an order.

When a care order is made the child remains in the care of Tusla for the length of time specified by the order, or until the age of 18 when they are no longer a child. Tusla has the rights and duties of a parent during this time. A care order can be renewed.

The District Court may make an interim care order while waiting for a decision on a full care order. If an interim care order is granted, this means that the child is placed in the care of Tusla for 28 days. It may be extended if Tusla and the parents agree.

A supervision order

A supervision order allows Tusla to supervise a child's care without the child being taken into the care of Tusla.

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 remain in their home and be visited and monitored by Tusla. A supervision order may be made instead of a care order, or while waiting for a decision on a care order. Alternatively, Tusla may apply to the court for a supervision order instead of a care order.

A supervision order gives Tusla the authority to visit and monitor the health and welfare of the child and to give the parents support and advice. The order is for a fixed period of time up to a maximum of 12 months but may be renewed.

A special care order

The High Court can grant a special care order or an interim special care order when a child needs special care and protection and is unlikely to get it unless such an order is made.

The court may make a special care order if:

• The child is at least 11 years old
• The child's behaviour poses a real and substantial risk to their own health, safety, development or welfare, and
• The child needs special care and protection which they are unlikely to get without such an order

A special care order means that the child is committed to Tusla's care. It authorises Tusla to provide appropriate care, education and treatment and, if necessary, to detain the child in a special care unit. The order will initially be for a period of up to 3 months but may be extended.

An interim special care order may be made before the normal procedure for a special care order is complete. If an interim special care order is made, the child may be detained in a special care unit for up to 28 days.

Separate representation for the child

The court must make all decisions on the basis that the welfare of the child is of greatest importance. With this 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 Tusla. If the child is not a party to the proceedings, the court may appoint an independent person to inform the court of the wishes and interests of the child. This person is called a guardian ad litem in legal terminology.

Assistance for parents of limited capacity

Parents whose children are the subject of child care proceedings may be entitled to legal aid. In certain circumstances, where the parent’s ability to understand the child care proceedings is significantly impaired due to an intellectual disability or a psychological condition, the legal aid solicitor can apply for the appointment of another person, sometimes known as a “support person” or “advocate”.

If appointed, they can:

• Help the parent to understand and participate in the child care proceedings
• Attend consultations between the parent and the legal team and other relevant meetings
• Help the parent to understand the relevant documents and any legal advice provided
• Communicate the parent’s views to their legal team

For further information on an advocate or support person, contact the Legal Aid Board or the National Advocacy Service for People with Disabilities.

If you are not happy with a decision or order, you have the right to appeal. Most child care orders are made in the District Court. An appeal from the District Court is heard in the Circuit Court which is the next highest court jurisdiction.

EPIC

EPIC (Empowering People in Care) is an independent organisation that works with and for children and young people who are currently living in care, people in aftercare and with adults up to the 27 years old with care experience. EPIC offers a advocacy service to children and young people in state care, and young people aged 18-26 with care experience.

Child Care Law Reporting Project

The Child Care Law Reporting Project was launched in 2013. It was established to provide information to the public on child care proceedings in the courts; to conduct research; to recommend how to deal with issues in the child care system identified by the research; and to promote confidence in the child care system.